MUHAMMED UMAR v. THE STATE
(2015)LCN/7871(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of May, 2015
CA/S/103/2014
RATIO
COURT: INTERFERENCE; WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT THAT IS NOT PERVERSED
Now, the law on the attitude of an appellate court to findings of facts by a trial court has been settled by the apex court in several cases. See KAMALU & ORS v VUMUNNA & ORS (1997) 5NWLR (pt 505), TSOKWA MOTORS (NIG) LTD v U. B. A. (2008) 2 NWLR (PT.1071) p.347 at 364-365; IBIKUNLE v STATE (2007) ALL FWLR (PT 354) 209 at 238; OKOLO v UZOKA (1978) 4 SC 77. Where a court makes findings of fact which are not perverse and are sufficiently supported by evidence on record, it is not the duty of an appellate court to interfere and disturb such findings of fact in view of the fact that the trial court had the advantage of seeing and hearing the witnesses. per. TUNDE O. AWOTOYE, J.C.A.
EVIDENCE: INCONSISTENCY IN EVIDENCE; WHETHER EVERY INCONSISTENCY IN THE EVIDENCE OF THE PROSECUTION COULD BE FATAL TO ITS CASE
Ejiwunmi JSC. In JOHN AGBO v THE STATE (2006) NWLR (PT 977) had this to say, “The law is settled that it is not every trifling inconsistency in the evidence of the prosecution witnesses that could be fatal to its case.” per. TUNDE O. AWOTOYE, J.C.A.
COURT: DUTY OF THE COURT; THE DUTY OF A TRIAL COURT IN HOMICIDE CASES TO CONSIDER ALL THE DEFENCES PUT UP BY THE ACCUSED
It is incumbent on a trial court in murder cases or homicide cases to consider all the defences put up by the accused expressed or implied in the evidence before the court however trivial. See NJOKU v THE STATE (1993) 7 SCNJ 36, BARA v STATE (1981) 2 NCR 110 at 125, UDOFIA v DPP (1955) 15 WACA 73, UMARU DAMU v THE STATE (2014) LPELR – SC 191/2010 per. TUNDE O. AWOTOYE, J.C.A.
COURT: THE DUTY OF THE COURT; THE FAILURE OF THE TRIAL COURT TO CONSIDER ALL THE DEFENCES OPEN TO AN ACCUSED IN A MURDER CASE
In ANNABI v THE STATE (2008) 13 NWLR (PT 1103) 179; Onnoghen JSC in his leading judgment had this to say on the consequence of failure of the trial court to consider all the defences open to an accused in a murder case. “It is also settled law that where a lower Court failed to consider the defences available to an accused appellant the appellate court is in as good a position as the lower Court to consider the said defences provided there are facts available on record to support same. The omission of a lower Court to consider any defences open to an accused/appellant can only be fatal to the decision of that court if there are available evidence on the record evidence of fact in support of the alleged defences.” per. TUNDE O. AWOTOYE, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria
MUHAMMED L. SHUAIBU Justice of The Court of Appeal of Nigeria
Between
MUHAMMED UMAR – 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 read on 11/6/2014 by the appellant accused in suit No. KB/HC/17C/2013, Mohammed Umar v. The State. Judgment was delivered on 11/4/2014 wherein Hon. Ibrahim B. Mairiga Judge of Kebbi State High Court found the accused guilty of the charge against him and convicted him as follows:-
“After careful consideration of the entire evidence before me, I am left with no doubt that the prosecution has proved its case beyond reasonable doubt. And the accused person has been proved to have committed the offence of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code. Based on the evidence of the prosecution witness particularly PW1, 2 and 3 and the exhibits produced before me, I am satisfied that the accused person Mohammed Umar is responsible for the death of Abubakar Andere. I therefore find you Mohammed Umar guilty as charged and convict you of the culpable homicide of Abubakar Andere punishable under Section 221(b) of the Penal Code.”
The charge against the accused/appellant read thus:
“That you, Mohammed Umar “M” on or about the 15th day of October 2012 at about 16:30hrs, behind Oando filling station, Bye-Pass road, Birnin Kebbi Local Government Area within the jurisdiction of the Kebbi State High Court of Justice did commit the offence of culpable homicide punishable with death in that you used knife to stab on Abubakar Andere A. K. A. Giraje “M” on his right shoulder which caused his death and you knew or had reason to know that death will be probable and not only a likely consequence of your act and thereby committed an offence punishable under Section 221(b) of the Penal Code”.
The appellant being dissatisfied with the judgment of the court below filed Notice of Appeal containing 5 grounds of appeal.
The grounds of appeal (shorn of the particulars) read as follows:-
“GROUND ONE
The decision of the Court below is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced at trial.
GROUND TWO
The court below erred in law when it placed reliance on exhibits 2 and 2A respectively in convicting and sentencing the appellant to death for the offence contrary to Section 221(b) of the Penal Code notwithstanding the manifest discrepancies in the name of person who signed the same and these has occasioned the miscarriage of justice.
GROUND THREE
The court below erred in law when it held that the testimony of PW1 corroborated the confession of the appellant Exhibits 2 and 2A and used same in convicting and sentencing the appellant for the offence of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code Law and this has occasioned a miscarriage of justice.
GROUND FOUR
The court below erred in law, acted without jurisdiction and prejudiced the constitutional right to fair hearing in public of the appellant as enshrined under Section 36(4) of the Constitution of the Federal Republic of Nigeria 1999 when written addresses were ordered to be filed and exchanged between the parties and this has occasioned a miscarriage of justice.
GROUND FIVE
The court below erred in law when in convicting and sentencing the appellant to death for the offence contrary to Section 221(b) of the Penal Code, it denied the Appellant his constitutional right to fair hearing thereby occasioned a miscarriage of justice on the appellant when it failed and or neglected to consider all the defence/s 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 and this has occasioned a miscarriage of justice.”
The record of appeal in this appeal was deemed properly compiled and transmitted to this court on 11/11/2014. Subsequently, parties filed and exchanged briefs of argument.
The appellant’s brief of argument was filed on 4/12/2014. The brief was settled by Ibrahim Abdullahi, learned counsel for the appellant.
Appellant’s counsel formulated 4 issues for determination by this court. They are:-
(a) Whether the court below had the jurisdiction and the appellant was accorded the Right to fair trial in Public as enshrined under Section 36(4) of the 1999 Constitution when the court below ordered for written addresses to be filed and exchanged between the parties in a Criminal matter? (This is decoded from ground 4 of the grounds of appeal).
(b) Whether given the circumstances of the case against the appellant at the court below, and having regard to the totality of the evidence led, it was proper for the court below in the absence of corroborative evidence to have relied on the alleged confessional statement of the Appellant admitted as Exhibits P2 & P2A in convicting and sentencing the appellant to death? (This is decoded from grounds 2 &3 of the grounds of appeal).
(c) Was the court below right in law when it refuse (sic) to consider all the defences open up to the appellant on the evidence before court below? (This is decoded from grounds 5 of the appeal).
(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? (This is decoded from ground 1 of the grounds of appeal).
On issue No 1, Learned appellants counsel submitted that the accused was not accorded Right to fair Hearing in public as enshrined under Section 36(4) of the 1999 Constitution when the court below ordered for written addresses to be filed and exchanged in a Criminal matter. He relied on MIKAILU v STATE (2001) 5 WRN 74 and other cases and submitted that this vitiated the proceedings.
On issue No 2 which relate to grounds 2 and 3 of the grounds of appeal, learned appellants counsel submitted that the learned trial Judge wrongly relied on Exhibits 1, 2 & 2A to convict and sentence the appellant of the offence charged when there was no corroboration of the statements. He relied on NWAEBONYI v STATE (1994) 5 NWLR (PT 343); NWACHUKWU v STATE (2007) (PT1062) 31 AT 70; DANA v STATE (1980) 8-11 SC. 236: AKPAN v STATE (1992) 6 NWLR (PT 248) 439. Learned counsel referred to the evidence of PW1 which contradicted the contents of the charge. He asserted that the PW2 & PW3 were not present at the scene of the crime. He submitted that prosecution rather than the court should have proffered explanation for the contradictions in the prosecution’s case. He relied on UBANI v STATE (2005) 1 Q C C R 131.
Learned counsel pointed out that the identity of the accused was confused with that of Abubakar Umar. He stated that PW5 gave that name as that of the appellant and that it was the said Abubakar Umar that signed Exhibits 2. He observed further that Exhibit 2 bore the thumb impression of Abubakar Umar and not that of the accused.
He therefore submitted that the decision of the court below was perverse. He urged the court to resolve the issue in favour of the appellant.
On issue No. 3, learned appellant’s counsel submitted that the court below failed to consider all the defences raised on the evidence no matter how slight. He relied on OFORLEJE v STATE (2000) 3NSCQR 243 at 245, and ADAH v STATE (2008) 34 NSCQR (PT 1) 508. Learned counsel referred to Exhibits P2 and P2A and contended that the defence of provocation and sudden flight raised by the accused was not considered. He cited Section 222(4) of the Penal Code and submitted that by Section 222(7) of the Penal Code Law, culpable homicide was not punishable with death. He added that the failure to consider all the defences available to the accused was fatal to the whole proceedings. He urged the court to resolve the issue in favour of the appellant.
On issue No. 4; Mr Ibrahim Abdullahi for the appellant submitted the prosecution bore the burden of proof beyond reasonable doubt which said burden never shifted. He referred to the essential elements of the offence under Section 221(b) of the Penal Code. He submitted that it was not proved that the act of the omission of the accused caused death, and that it was intentional with knowledge that death or grievous bodily harm was its probable consequences.
He referred to the different names in the prosecution’s case i.e, name of the appellant and Abubakar Umar. He submitted that the denial of Exhibits 2 and 2A by the appellant placed a duty on the court below to resolve it by evidence led before it. This according to counsel, the lower Court failed to do. He submitted that the decision of the court below was perverse and that this occasioned miscarriage of justice. He contended that there was no medical evidence to show what actually led to the death of the deceased even though there was evidence by the prosecution witnesses, that the deceased was taken to the hospital.
He argued further that since there was no identification of Exhibit 1 as the lethal weapon used, there was doubt as to the cause of death and since proof of death must be unequivocal, the appellant ought to have been discharged. He relied on UDOSEN v STATE (2007) 23 WRN 50.
He finally urged the court to resolve this issue in favour of appellant.
The Respondent’s brief of argument was filed on 26/2/2015. The brief was settled by Shamsudeen Jaafar, State Counsel Ministry of Justice, Kebbi State. Learned State Counsel adopted the four issues formulated by the appellants counsel.
On issue No 1, learned counsel submitted that the appellant was accorded the right to fair trial in public as guaranteed under Section 36(4) of the 1999 Constitution. Learned counsel submitted further that the appellant was represented by a counsel of his own choice throughout the trial at the court below. He stated that the counsel for the appellant applied for the written address to be filed and the prosecution agreed with him. He said, in consequence the court ordered the filing of the written addresses which were later adopted in open court. He therefore submitted that the case of MIKAILU v STATE (supra) cited by the appellant’s counsel could not stand as the court below fulfilled all the necessary procedure of a criminal trial.
On issue No 2, leaned Respondent counsel submitted that the learned trial Judge was right to have relied on the confessional statement of the accused alongside the evidence of PW1, PW2 and PW3 were cogent and compelling enough to sustain the accused’s conviction. He cited OKOH v STATE (2014) 57 NSCQR (PT II) 732 at 741. He asserted that the evaluation of the evidence by trial court was satisfactory and could not be disturbed. See NKEBISI v STATE (2010) NCC 84 at 90.
On evidences of PW2 and PW3, learned Respondent’s counsel submitted that they did not give hearsay evidence. He further submitted that there were no material contradictions in the case of the prosecution. He relied on the case of ADOGA v STATE (2014) LPELR – 22944 (CA); BABARINDE v STATE (2013) 56 NSCQR 348.
Learned Respondent counsel relying on IRENE NGUMA v IMO STATE (2014) 572 NSCQR 1282 submitted that conviction could be based solely on the free voluntary confession of the appellant.
He urged the court to resolve this issue in favour of the Respondent.
On issue No 3:- Learned State counsel submitted that the court below considered and evaluated all the possible defences available to the appellant. He contended that Section 222(4) and (7) of the Criminal Code do not provide defences for the appellant. He stated that there was premeditation by the accused who took advantage of having a knife against the deceased. He urged the court to resolve the issue in favour of the Respondent.
On issue No 4. Respondent’s counsel argued that in view of the statement of the appellant and the evidence of the witness for the prosecution, there was enough evidence to sustain the offence in the charge against the appellant. He added that a man was presumed to intend the natural consequences of his act. He cited SOLOMAN EHOT v THE STATE (1993) 5 SCNJ 93; He urged the court to resolve the issue in favour of Respondent.
I have carefully considered the evidence adduced at the lower Court as contained in the record of appeal as well as the submissions of learned counsel on both sides.
I have also deeply considered the issues as formulated by learned counsel on both sides. I am of the respectful view that the four issues formulated can be condensed into 3 issues for the just determination of this appeal.
The 3 issues are:-
(1) Whether the court below had the jurisdiction and the appellant was accorded the Right to fair trial in public as enshrined under Section 36(4) of the 1999 Constitution when the court below ordered for written addresses to be filed and exchanged between the parties in a Criminal matter.
(2) Whether given the circumstances of the case the appellant at the court below and having regard to the totality of the evidence led, it was proper for the court below in the absence of corroborative evidence to have relied on the alleged confessional statement of the Appellant (admitted as Exhibits P2 and P2A) in convicting and sentencing the Appellant to death.
(3) Was the court below right in law, when it refused to consider all the defences open up to the appellant on the evidence before the court below?
I shall consider this appeal in the light of the above issues.
ISSUE NO 1:-
Were the ordering and filing of written addresses by the court below an infringement of the provision of Section 36(4) of the 1999 Constitution?
The learned trial Judge at the request of counsel on both sides had ordered the filing and exchange of written addresses by counsel.
According to the record, (See page 29 of the record of appeal.)
“Nuradeen (for the accused): that concludes our defence. May I ask for three weeks within which to file My addresses?
SC I: I would also ask for 1 week from the date of receipt of defence counsel’s address to file my own address
Court: Written address are hereby ordered filed and exchanged. Case is adjourn (sic) to 11/3/14 for adoption of addresses.”
The appellant has argued that this is violation of his right to fair trial in public as guaranteed under Section 36(4) of the 1999 Constitution having regards to the fact that the addresses were not read in open court.
True, the submission of learned counsel for the appellant is in line with the decision of this court in MIKAILU v STATE (2001) 8 NWLR PART 715 page 469 where Abdullahi PCA in delivering the leading judgment said:
“The learned trial Judge did not take oral speeches of counsel in open court. Rather the learned trial Judge ordered written addresses which were exchanged amongst counsel representing the parties in the matter before her. The addresses that were filed and exchanged consequently upon the order of the court were not subsequently read in open court, can this be said to be in compliance with clear and unambiguous or unequivocal provision of the Constitution? I do not think so. ——— In my respectful opinion, I do not think that the addresses exchanged by counsel and was not read in the open court can be said to have met the demand of Section 33(13) of the Constitution. At least, the address stage cannot be said to hold to be in public. It follows that the trial is not in public. ——— I very much regret that this issue vitiates the trial which is otherwise very well conducted.”
Learned counsel for the appellant had urged the court to allow the appeal based on this.
I am of the respectful view that MIKAILU’s case turned on its facts. The facts of this appeal are distinguishable from MIKAILU’s case (supra). In MIKAILU’s case, the written addresses filed were not read or adopted in open court. But in this appeal the written addresses were adopted in open court.
The filing and adoption of written addresses have an aim. It is to save time and remove delay in the administration of Justice. To demand that the counsel should appear in court to present and read the address in open court would defeat the entire purpose of calling for a written address. See GWAR v ADOLE (2003) 3 NWLR (PT 808) 516.
The adoption of the written addresses so filed makes the addresses public. That is why adoption of the written addresses is important and non-adoption could vitiate a proceeding. An adoption of a written address is an open, public affirmation of the summing up of facts and law of a party to the court and adversary. See OBODO v OLOMU (1981) NWLR (PT 59) 111.
In OGUJI & ORS v UNUAGWU (2012) LPELR – CA/OW/95/2009, Owoade JCA, on pages 22-24 had this to say
“Section 36(1) of the said Constitution provides “In determination of the civil rights and obligation including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a court or other tribunal established by a law and constituted in such a manner as to secure its independence and impartiality “And in subsection(3) of the same section 36 of the constitution” (3) The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in section (1) of this section including the announcement of the decisions of the court or tribunal shall be held in public. Now, in all the circumstance of the instant case written addresses that were not adopted and deemed to be part of the record of proceedings are as bad as written addresses that were not ordered. Also the “address” portion of the proceedings cannot be said to have held in public.”
I shall follow the decision of this court in UGOJI & ORS UWUAGWU (supra). I resolve issue No. 1 in favour of the Respondent.
On issue No 2, were the conviction and sentence of the appellant right in law having regards to the confessional statements and the circumstances of the case? I shall quickly go through the evidence adduced before the lower Court.
PW1, Mubarak Abdullahi, a 14year old was an eye witness. He gave evidence inter alia thus:
“The accused performed ablution and was preparing to go to the Mosque, when he asked Abu for N30 and the deceased said he would give him upon his return from the Mosque. After my father returned (sic).
The accused said he would not wait, a fight ensured between them. Accused brought out a knife and deceased took to his heels. Accused pursued the deceased. Deceased fell and accused struck him the knife twice once on the chest and the upper arm. Deceased fell on the wooden bridge across the gutter and after he was stabled (sic) deceased fell in the gutter.”
PW2, Ibrahim Idris, in his evidence, gave evidence thus:
“I know the accused in the dock. We have the same business center. On 14/10/2012 it was in the afternoon after Azahar prayers, there was this person who sells blocks by name Bala and are Siddi and another Abdullahi and Ali Haruna all of or 6 fix entered a vehicle to Hasasawa for condolence.
Before we left the deceased crossed over from the garage. I left the deceased, accused and PW1 and joined the vehicle and on our returned for the Hasasawa and as we approached the place, I saw PW1 and asked him what happened and after he informed me of what happened I asked the whereabouts (sic) of the accused.
——– The deceased was in a pool of his own blood, with the blood still gushing out. He had a wound on his shoulder and chest.”
PW5 Cpl. Sylvester Madaki was detailed to record the statement of the accused. He explained how the accused volunteered his statement and how he took the accused/appellant before senior police officer. He gave evidence that the accused confirmed making the statement. The witness tendered the knife referred to him in the course of investigation. The statements were admitted as Exhibits 2 and 2(a).
The accused later gave evidence denying the incident and denying making Exhibits 2 and 2a.
All the above witnesses gave evidence before the trial court. After seeing and hearing them, the learned Judge found as follows:
“After careful consideration of the entire evidence before me, I am left with no doubt that the prosecution has proved its case beyond reasonable doubt and the accused person has been proved to have committed the offence of culpable homicide punishable with death contrary to section 221(b) of the Penal Code. Based on the evidence of prosecution witnesses particularly PW, 2 and 3 and the Exhibits produced before me.”
Now, the law on the attitude of an appellate court to findings of facts by a trial court has been settled by the apex court in several cases. See KAMALU & ORS v VUMUNNA & ORS (1997) 5NWLR (pt 505), TSOKWA MOTORS (NIG) LTD v U. B. A. (2008) 2 NWLR (PT.1071) p.347 at 364-365; IBIKUNLE v STATE (2007) ALL FWLR (PT 354) 209 at 238; OKOLO v UZOKA (1978) 4 SC 77. Where a court makes findings of fact which are not perverse and are sufficiently supported by evidence on record, it is not the duty of an appellate court to interfere and disturb such findings of fact in view of the fact that the trial court had the advantage of seeing and hearing the witnesses.
I do not want to disturb the findings of the fact of the learned trial Judge who saw and heard PW1, PW2, PW3 and the accused. I resolve, in the circumstance, issue No 2 in favour of the Respondent.
Learned appellant’s counsel also submitted that there were material contradictions in the prosecution’s case. Of course, for a contradiction in the prosecution’s case to vitiate the case, it must be material in the sense that it has disparaging effect on the case of the prosecution. According to Muhammed JSC, in JIMMY v STATE (2013) LPELR – SC 205/2009,
“Appellant succeeds on the ground of the contradictions in the evidence of the witnesses if he convinces the court that substantial disparagement of the evidence of the particulars witnesses has ensued thereby making reliance on their evidence unsafe, dangerous and likely to occasion miscarriage of Justice. See AGBO v STATE (supra) and OGUNBAYO v STATE (2007) NSQLR Vol. 29 806 at 833”
I have deeply considered the contradiction highlighted by the appellant’s counsel in the face of the entire evidence adduced by the prosecution. The contradictions pale into insignificance in view of the convincing direct evidence of the 14year old boy PW1 identifying the accused and witnessing the incident. It is arguable that what the PW1 referred to as upper arm was what was described in the charge as shoulder. In any case, all the prosecution witnesses were unanimous on the injury to the deceased. It was pointed out by appellant’s counsel that the accused was not the author of Exhibits 2 and 2A, the name of the author of Exhibits 2 was Abubakar Umar and not Mohamed Umar which is the name of the accused.
But the simple answer to this is that without Exhibits 2 and 2A, the evidence of PW1 which was accepted by the trial Judge and that of other witnesses are strong enough to support the conviction of the accused.
Ejiwunmi JSC. In JOHN AGBO v THE STATE (2006) NWLR (PT 977) had this to say,
“The law is settled that it is not every trifling inconsistency in the evidence of the prosecution witnesses that could be fatal to its case.”
I must comment also on the argument of learned appellant’s counsel on the absence of medical evidence to prove cause of death inspite of the fact that the deceased was taken to the hospital. It is settled law that absence of medical evidence as to cause of death is not fatal to the prosecution’s case. This is moreso in view of the eye witnesses account as to how the deceased came by his death see. AKPAN v THE STATE (1972) 4 SC. 5; ADETOLA & ORS v THE STATE (1992) 45 CNJ 199; UYO v A-G OF BENDEL STATE (1986) 1 NWLR (PT 17) 418. These cases provide complete answer to the learned appellant’s argument.
Now to issue No 3. Did the lower Court consider all the defences available to the accused as required by law before convicting him? In answering the above question, there is need to refer to the evidence of the accused as well as the statement which he retracted but which the learned trial Judge accepted and relied upon to convict him.
In his evidence, the accused denied (1) any involvement in the incident, and (2) denied making any statement (3) in his retracted statement however, the accused said
“I could remember on Monday being 15th October, 2012, I was in my shop (sic) Oando behind new garage when three people came to my place and one of the them came to me and took one package of Benson cigarette in my shop. Though he did not consent me, when he took the cigarette, he gave it to one of his colleague that they were together with him, from there, he went ahead and took packet of Biscuit again and eat it. After that, I told him that the Money involved in the cigarette and the Biscuit as N230.00.0 from there, he said I should not disturb him and should not tell him nonsence and left, from there, I decided to hold him by his shirt he turn and also held me by my shirt too and slap me. I revenge by slapping him too, from there, He took an empty bottle of coke use in selling engine oil and hit me with it on my head and I fell down and he started beating me. He overpowered me because he climbed on top of me and was seriously beating me. I quickly remember that I was with knife tied on my west and I removed the knife and stabbed him with it on his right side of his hand. From there he also fell down, and I wake up and was trying to run and people arrested me. Why I held him in the just place is because I don’t know him and it was as a result of the stabbed, I did of him, he died when he was taken to Fmc B/kebb. That is all I know, (sic).”
It is incumbent on a trial court in murder cases or homicide cases to consider all the defences put up by the accused expressed or implied in the evidence before the court however trivial. See NJOKU v THE STATE (1993) 7 SCNJ 36, BARA v STATE (1981) 2 NCR 110 at 125, UDOFIA v DPP (1955) 15 WACA 73, UMARU DAMU v THE STATE (2014) LPELR – SC 191/2010:-
Did the lower Court comply with the above? The accused raised the defence suggesting provocation and sudden fight in his statement. This obviously was not considered by the learned trial Judge. But does this vitiate the proceedings? In MUSA YARO v STATE (2007) 18 NWLR (PT 1066) 215, the Supreme court where the trial Judge failed to consider all the defences available to the accused considered whether or not this led to miscarriage of justice. The conviction by the trial court was upheld as it did not lead to miscarriage of justice. Oguntade JSC in his leading judgment, stated as follows
“– – – — the trial court is only under an obligation or duty to consider such defence(s) open to an accused person only as disclosed or supporting by the evidence on the printed record.
Thus in EKPEYONG v STATE (Supra) it was held that a court of law will not presume or speculate on the existence of facts not placed before it and that accused person is usually required or recommended to give his evidence VIVA VOCE rather then adopting his previous extra judicial statement for his defence or resting his case on the evidence of the prosecution as dare by the appellants in the instant case.”
In ANNABI v THE STATE (2008) 13 NWLR (PT 1103) 179; Onnoghen JSC in his leading judgment had this to say on the consequence of failure of the trial court to consider all the defences open to an accused in a murder case.
“It is also settled law that where a lower Court failed to consider the defences available to an accused appellant the appellate court is in as good a position as the lower Court to consider the said defences provided there are facts available on record to support same. The omission of a lower Court to consider any defences open to an accused/appellant can only be fatal to the decision of that court if there are available evidence on the record evidence of fact in support of the alleged defences.”
I have carefully examined the record of appeal. The accused himself could not support his statement and alleged defence in the witness box. He denied and disowned the statement in the witness box.
Beside the accused’s said statement was to the effect that he was going about with a knife tied to his waist. The defence of Section 222(4) of the Penal Code is not available to such an accused. See AUDU v STATE 7 NWLR (PT 820) 516.
I hold that there is sufficient evidence on record to sustain and support the findings of fact of the learned trial Judge. I hold that the findings are not perverse. I hold that the conviction and sentence of the accused/appellant are unassailable.
In the circumstance this appeal lacks merit. It is accordingly dismissed.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have read, in draft, the judgment just delivered by my learned brother, TUNDE O. AWOTOYE, J.C.A. and I agree with his reasoning and conclusions, which I adopt as mine.
I dismiss the appeal and abide by the consequential orders contained in the lead judgment.
MUHAMMED L. SHUAIBU, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, AWOTOYE JCA and I entirely agree with the reasoning contained therein and conclusion arrived thereat.
The findings of the learned trial judge are unassailable and the failure on the part of the lower Court to consider available defences open to the accused person does not lead to a miscarriage of justice.
I also affirm the conviction and sentence of the appellant by the lower Court for the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code.
Appearances
Ibrahim AbdullahiFor Appellant
AND
Bagudu U. Abubakar (CSC) with Shamsudden Jaafar (SCI)For Respondent
