MAI HAMMAN v. THE STATE
(2018)LCN/11786(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of June, 2018
CA/J/138C/2017
RATIO
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
MAI HAMMAN Appellant(s)
AND
THE STATE Respondent(s)
RATIO
JUDICIAL DISCRETION
Judicial discretion has been defined as the exercise of judgment by a judge or Court based on what is fair under the circumstances and guided by the Rules and principles of law, a Court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right. per ADAMU JAURO , JCA.
EXERCISING JUDICIAL DISCRETION
The exercise of discretion has to be judicial and judicious, hence there is no hard and fast rule of how to exercise it, otherwise it will no longer be called discretion. It is a power or right conferred upon functionaries by law, of acting in certain circumstances, according to the dictates of their judgment, uncontrolled by the judgment or conscience of others. per ADAMU JAURO , JCA.
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment):
The instant appeal is against the judgment of the Borno State High Court of Justice No. 13 Maiduguri, delivered on the 31st January, 2017 by Honourable Justice F. Umaru.
The background facts resulting in this appeal can be summarized as follows: The appellant was alleged to have killed one Bukar Shehu on 31-08-2013 by inflicting several cuts on the hand, back and chest of the deceased with a machete. As a result of the injuries sustained the deceased collapsed and was rushed to Uba General Hospital where he was pronounced dead.
As a consequence of the above, the appellant was arraigned on a one count charge for the offence of culpable homicide not punishable with death, under Section 224 of the Penal Code. The charge reads thus:
THE CHARGE
That you Mai Hamman on or about 31/08/2013 at about 2200 hours at Killakessa Village, Damboa Local Government Area of Borno State is within the jurisdiction of this Honourable Court, caused the death of one Bukar Shehu (alias Bukar Chau) by stabbing him severally with a machete on his hand, back and chest knowing that death would be the likely consequence of your act and you thereby commit an offence punishable under Section 224 of the Penal Code, Laws of Borno State, 1994.
See page 3 of the record.
The appellant pleaded not guilty to the charge on 22-7-2014 and the case immediately proceeded to the hearing stage. See page 18 of the record. Inspector Samson Tumba testified as PW1 and through him the confessional statement of the accused now appellant was tendered and admitted as exhibit A. It is noteworthy to mention that the defence never objected to the admissibility of the confessional statement of the appellant. For clarity and ease of reference the proceedings of 22-7-2014 on page 19 lines 5 to 15 is hereby reproduced.
Witness: The accused confessed to me to have used his machete to strike the deceased on several part of his body that led to the deceaseds death. If I see the statement I can identify it by my handwriting and signature.
A.F. Mshelia I apply to show the witness the statement.
Z.M. Umar No objection
Court Show the witness the statement
WITNESS CONTINUES This is the statement made by the accused
A.F. Mshelia I apply to tender the statement in evidence
Z.M. Umar No objection.
RULING
The statement made by the accused person on the 17th day of September, 2013 and recorded by the witness is admitted in evidence as exhibit A.
Sgd.
Judge
22/7/2014.
Sgt. Usman Tukur testified as PW2 to the effect that he interpreted the confessional statement of the accused/appellant from Fulfulde language to English language. After the evidence of PW2, despite series of adjournments the prosecution could not produce the remaining witnesses, hence closed its case on 18-11-2014. The defence elected to rest its case on that of the prosecution. Excerpts from the record of appeal reflecting what transpired on 18-11-2014 as contained on pages 24 to 25 is hereby reproduced:
18/11/2014
Accused in Court and speaks Fulfulde language.
Kashim Abdullahi affirms to interpret to the accused person from English language to Fulfulde language and vice versa.
A.F. Mshelia (SC) for the state.
Z.M. Umar for the accused.
A.F. Mshelia- The matter is for continuation of hearing but we apply to close the case for the prosecution.
Z.M. Umar No objection.
Court- The case of the prosecution is closed as prayed and the accused is ordered to proceed with his case.
Sgd.
Judge
18/11/2014
Z.M. Umar We apply to rest the case of the accused on that of the prosecution.
A.F. Mshelia- I ask for 19/11/2014 for address.
Z.M. Umar No objection.
Court Matter adjourned to 12:00 noon of 19/11/2014 for address. Accused person to be further remanded in prison custody.
Sgd.
Judge
18/11/2014.
Both parties addressed the Court on the 19-11-2014 and in a judgment delivered on 3-12-2014 the trial convicted the appellant under Section 224 of the Penal Code and sentenced him to life imprisonment. The concluding part of the judgment page 35 and 36 of the record reads thus:
On the whole, I hold that the prosecution has proved the guilt of the accused beyond reasonable doubt and that the defence of self defence is not available to the accused.
Consequently, I hereby find you, Mai Hamman, guilty as charged and accordingly convict you for the offence of culpable homicide contrary to Section 224 of the Penal Code Law Cap.102 Laws of Borno State of Nigeria 1994.
SDG.
HON. JUSTICE F. UMARU
JUDGE
3RD DECEMBER, 2014.
ALLOCUTUS
Court to convict: – Do you have any plea to make before sentence is passed on you
Convict to Court: I pray for leniency.
Z.M.Umar:- The convict is a first time offender and by Section 224 of the Penal Code Law this Court has the power to impose an option of fine or lesser term against the accused. Considering the fact that the convict is a first time offender we ask the Court to tamper justice with mercy. We pray that the Court impose an option of fine.
Y. Gazali:- The case being a culpable homicide empowers the Court to impose the maximum term. Human life is very precious and homicide cases are very rampant in our society nowadays. The accused should be given the maximum sentence so that it will serve as deterrent to others. The discretion given under Section 224 of the Penal Code should be exercised judicially and judiciously.
SENTENCE
I have considered the plea made personally by the convict himself and that made on his behalf by his counsel Mr. Z.M. Umar. I have also considered the points raised by the prosecution counsel that she wants this Court to consider in sentencing the convict. I must state that the wordings of the provisions of Section 224 of the Penal Code Law are very clear. It gives this Court the power to sentence a convict to imprisonment for life or for a lesser term of imprisonment or impose a fine. In the light of the provisions of Section 224 of the Penal Code Law Cap.102 Laws of Borno State of Nigeria 1994 I hereby sentence you Mai Hamman to life imprisonment.
SDG.
HON. JUSTICE F. UMARU
JUDGE
3RD DECEMBER, 2014.
Distressed by the aforementioned decision the accused challenged same vide a notice of appeal dated 1-10-2016 and filed on 30-1-2017 pursuant to the leave of this Court granted on 19-1-2017. The notice of appeal is supported by six grounds of appeal. In compliance with the Rules of Court, parties filed and exchanged their respective briefs of argument. The appellants brief of argument settled by Hussaini Hala Esq. is dated 12th December, 2017 and filed on 18th December, 2017. The respondents brief of argument settled by A.S. Kaigama Esq. is dated 12th January, 2018. On the date of hearing the appeal, T.A. Lenkat Esq. who held brief for Hussaini Hala Esq. adopted the appellants brief and urged the Court to allow the appeal. The respondent was duly served hearing notice on 2/5/2018 through the D.P.P. Ministry of Justice Borno State but no counsel appeared on its behalf. Hence the respondents brief was deemed duly adopted and argued in line with Order 19 Rule 9(4) of the Court of Appeal Rules 2016.
The appellant crafted five issues for determination on page 3 to 4 of the appellants brief as follows:
1. Whether the trial Court was right to have proceeded with Charge No:BOHC/MG/CR/01/2014 against the Appellant considering the fact that the office of the Attorney Generals chambers had already written an advise for termination of case against the Appellant to the police, same was copied to the trial Court and a motion seeking withdrawal of the charge was filed and pending up to date before the trial Court.
2. Whether the trial Court was right in convicting and sentencing the Appellant based on the Appellant’s purported confessional statement without properly putting the said confessional statement to test i.e. to see whether there’s independent corroborative evidence outside the confession.
3. Whether there are intervening acts between the injury caused by the Accused/Appellant to the deceased and the tile the deceased died.
4. Whether there are defences available to the Convict/Appellant before the trial Court.
5. Whether the trial Court has judicially and judiciously considered the extenuation factors put forward in favour of the convict/appellant before sentencing the convict to life imprisonment.
The respondent on its part, adopted all the five issues submitted by the appellant. See pages 3 and 4 of the respondents brief.
The issues as formulated by the appellant will be adopted for the resolution of the appeal, save that issues 2, 3, 4 and 5 will be subsumed into a single issue as issue 2. Hence the appeal will be resolved on the following two issues namely:
1. Whether the trial Court was right to have proceeded with Charge No: BOHC/MG/CR/01/2014 against the Appellant considering the fact that the office of the Attorney Generals chambers had already written an advise for termination of case against the Appellant to the police, same was copied to the trial Court and a motion seeking withdrawal of the charge was filed and pending up to date before the trial Court.
2. Whether the prosecution now respondent has proved the offence of culpable homicide not punishable with death against the accused now appellant.
ISSUE ONE
The appellant stated that it is trite that the Attorney General of a State or Federation has unfettered discretion to either prosecute or discontinue prosecution of a criminal case against any person. In support, reference was made to the following cases: STATE V. ILORI & 2 ORS. (1983)2 SC 155 at 172, ALHAJI ATTA V. C.O.P. (2003)5 F.R.P.P. 186 at 203; SHIDALI V. F.R.N. (2008) ALL FWLR (Pt. 421) 899 at 913 914, ABACHA V. STATE (2002) 11 NSCQR 345 at 381, Sections 174 (1) (3) and 211 (1) (3) of the 1999 Constitution (as amended). It was submitted that the Attorney Generals decision to either prosecute or discontinue prosecution of any case cannot be questioned by the Courts and Courts cannot question the manner the discretion is exercised. In support, reference was made to the following cases: ABACHA V. STATE (supra) page 381, SHIDALI V. F.R.N. (supra) page 914, ALHAJI ATTA V. C.O.P. (supra) page 203. It was posited that the Attorney General can either exercise the powers personally or through officers of his department. In support reference was made to Sections 174 (1) (3) and 211 (1) (3) of the 1999 Constitution (as amended) and the following cases: UNIPETROL NIG. PLC. V. E.S.B.I.R. (2006) ALL FWLR (Pt. 317) 413 at 426 OR (2006) 6 MJSC 114 at 126, FRN V. OSAHON (2006)25 NSCQR 512 at 549-550.
Based on the foregoing, the appellant contended that there was a letter of legal advice terminating the case against the appellant, hence the trial Court was wrong in conducting the trial. It was argued that the requirements of a valid arraignment have not been satisfied. In support, reference was made to the case of ORPIN V. STATE (2008) ALL FWLR (Pt. 426) Pg. 2008 at 2010.
The respondent conceded that the Attorney General of a State or Federation has unfettered discretion to either prosecute or discontinue prosecution of a criminal case. It was stated that the letter of legal advice sent to the police was overtaken by events as the case was re-assigned to A.F. Mshelia Esq. State Counsel who filed and prosecuted the case. It was submitted that the offence charged is a serious one and does not fall within the list of compoundable offences in appendix C of the CPC of Borno State. It was posited that the motion filed 10-3-2014 died a natural death as the case was not properly before the Court when it was filed as plea was only taken on 22-7-2014. It was argued that though there was no ruling in respect of the motion but motion struck out and date was boldly written on the motion. It was submitted on the issue of different charge number, that the earlier charge was struck out and a new one adopted and the plea of the accused taken. It was contended that it was a typographical error which has not affected the substance of the case.
It is conceded by both parties, that the Attorney General of either a State or the Federation has unfettered discretion to either prosecute or discontinue prosecution of a criminal case against any person. The discretion of the Attorney General can be exercised by him in person or through officers of his department and once the power or discretion has been properly exercised no one can question it, including the Courts. See Section 174 (1) (3) and Section 211 (1) (3) of the 1999 Constitution (as amended), and the following cases: AUDU V. A.G. FED. (2013) 8 NWLR (Pt. 1355) 175, STATE V. ILORI & 2 ORS. (1983) 2 SC 155,ALHAJI ATTA V. C.O.P. (2003)5 F.R. 186, SHIDALI V. F.R.N. (2008) ALL FWLR (Pt. 421) 899, ABACHA V. STATE (2002) 11 NSCQR 345 at 381, FRN V. OSAHON (2006)25 NSCQR 512.
The basic grouse of the appellant under this issue was that there was a legal advice to the police terminating the case against him. Hence it was posited that it was wrong to have commenced the trial against him and the arraignment was therefore improper. It has to be pointed out that the said legal advise referred to was not a nolle prosequi given under the hand of the Attorney General. SeeAUDU V. A.G. FED. (supra). Furthermore, the legal advice was an exhibit annexed to a motion dated 10-5-2014. The said motion was endorsed struck out on 22-7-2014 and it was cancelled on the face of it. The motion having been struck out is no longer a process with life in the proceedings. The same Attorney Generals Chambers that issued the advice filed an application to prefer a charge which was dated 10-7-2014 and signed by A.F. Mshelia Esq. a State counsel. The application to prefer the charge is competent and the arraignment and the plea of the accused person was properly taken in line with the provisions of Section 187 of the Criminal Procedure Code. Hence I do not see how the decision to prosecute the appellant against the earlier legal advise terminating the case, will affect the validity of the arraignment. There is infact no nexus between the two. The case of ORPIN V. STATE is not applicable to the instant case. Consequently the complaint under this issue lacks merit and therefore of no moment and same is hereby resolved against the appellant.
ISSUE TWO:
The appellant stated that there are three ways of establishing the guilt of an accused person, namely direct evidence, circumstantial evidence and confessional statement. In support, reference was made to the case of OKASHETU V. STATE (2016) 6-7 MJSC 51 at 73. It was submitted that where the evidence relied upon by the prosecution is a confession, it must be put to test as to its truth in line with the six requirements for the tests. In support, reference was made to the following cases: AFOLABI V. STATE (2016)4-5 MJSC 1 at 20, NWACHUKWU V. STATE (2008)3 NCC 100 at 136, STATE V. EBOH (2005)4 ACLR 602 at 627. It was submitted that the trial Court never conducted the tests but relied on the evidence of PW1 and PW2 which was hearsay as corroborative evidence. In support reference was made to the case of ZAKARI AHMED V. STATE (1999)7 NWLR (Pt. 612)641 at 675. On this score it was urged that the appeal be allowed.
The appellant listed the three requirements to be proved for the offence of culpable homicide. In support of the three ingredients, reference was made to the case of STATE V. USMAN (2007)5 ACLR 34 at 60.
It was submitted that the first and third ingredients have not been proved as it was not established that death was as a consequence of the act of the appellant. In support reference was made to the following cases: SULE AHMED V. STATE (2003)3 ACLR 145 at 147, ZAKARI AHMED V. STATE (supra), OCHUKO TEGWONOR V. STATE (2008)15 ACLR (Pt. 1) 97 at 130. It was posited that the biological cause of death has not been established and there was no causal link to the act of the accused. In support, reference was made to SULE AHMED V. STATE (supra). It was contended that when the appellant fought with deceased both of them sustained injuries and the deceased was rushed to Uba General Hospital and admitted for 3 days where he died of excessive bleeding. In support, reference was made to answers of PW1 and PW2 to cross-examination on page 19 lines 20-25 and page 20 lines 21-25. It was argued that the hospital could not control the bleeding, hence there was an intervening act not attributable to the appellant. It was urged that the appeal be allowed based on intervening factors.
It was stated that in a criminal trial the Court is bound to consider all defences available to the accused whether raised or not. In support, reference was made to the following cases: OFORLETE V. STATE (2006)10 MJSC 62 at 69, ANNANABI V. STATE (2008) MJSC 107 at 123-124. It was submitted that the defence of sudden fight under Section 220 (4) and self defence under Section 60 of the Penal Code were glossed over by the trial Court. It was argued that sudden fight mitigates, the offence from murder to manslaughter, while self defence completely exonerates. The appellant listed the four requirements of self defence and in support reference was made to the case of MUSA V. STATE (2009)7 MJSC (Pt. 1)52 at 89-90. It was argued that the requirements of self defence have been satisfied as the appellant was in reasonable apprehension of death or grievous bodily injury. In support, reference was made to the case of ADEYEYE V. STATE (2013)11 NWLR (Pt. 1364) 60 at 65. It was urged that the trial court was wrong not to have considered whether self defence availed the appellant.
It was argued that the lower Court was wrong to have imposed a severe punishment when the appellant is a first offender. It was posited that the trial Court ought to have considered extenuating circumstances and awarded a milder punishment. It was contended that the judge has not exercised his discretion judicially and judiciously. In support, reference was made to the following cases: TANKO V. STATE (2008) 1-2 MJSC 209 at 246 247, EKPO V. STATE (1982)1 NCLR 34, KATTO V. CBN (1991)9 NWLR (Pt. 214)126. On the whole, it was urged that the appeal be allowed.
The respondent stated that a free and voluntary confession which is direct, positive and properly proved is sufficient to sustain conviction even without corroborative evidence, so long as Court is satisfied with the truth of the confession. In support, reference was made to the case of AYEDUN V. STATE (2014)10 NCC 527. It was submitted that the learned trial judge tested the veracity of the confessional statement by considering the various factors required in ascertaining weight to be attached to a confessional statement. In support reference was made to page 33 lines 4-20 of the record and the case of AYEDUN V. STATE (2014)10 NCC 527 at 558. It was argued that the evidence of PW1 and PW2 was not hearsay and is in line with Section 126 of the Evidence Act as the appellant confessed to the commission of the crime to them. It was posited that the evidence in the instant case is positively pointing to the guilt of the accused. In support, reference was made to case of ODOGWU V. STATE (2014)10 NCC 386 at 451.
On the requirements of homicide, it was submitted that PW1 and PW2 testified to the effect that one Bukar Shehu died, and exhibit A also confirmed the death. As to the second requirement, the respondent stated that the appellant had a fight with the deceased and stabbed him severally with a machete and he died thereafter. It was submitted that a man intends the natural consequences of his act. In support, reference was made to Section 19 of the Penal Code and the following cases:STATE V. BABANGIDA JOHN (2014)10 NCC 69 at 93. AUDU V. STATE (2003)7 NWLR (Pt. 820) 516. It was posited that by stabbing the deceased several times with a machete on vital parts of the body, will have no other result than death.
On intervening factors it was argued that where cause of death is obvious, medical report ceases to be of practical necessity. In support, reference was made to the following cases:BEN V. STATE (2006) NWLR (Pt.1006) 582, AIGUOREGHIAN V. STATE (2004)1 SCNJ 81. It was contended that though medical report is desirable, it is not sine qua non as cause of death may be established by sufficient evidence showing that the act of the accused caused the death of the deceased. In support, reference was made to the case of UBANI V. STATE (2004), MJSC 92 at 103. It was posited that cause of death can be inferred where the deceased died immediately of the attack. In support, reference was made to the case of UGURU V. STATE (2002) FWLR (Pt. 103) 330 at 334. It was argued that the victim died as a result of act of the accused and the assertion by the appellant of inadequate medical facilities at General Hospital Uba has no role in the death of the deceased.
The respondent stated that the appellant did not testify but rested his case on that of the prosecution, hence his half hearted defence of self defence doesnt deserve any attention. In support, reference was made to the case of AKINYEMI V. STATE (2001)2 ACLR 32 at 46. It was submitted that the trial Court had judiciously considered the defence but did not find any evidence that will avail the appellant.
The respondent listed the requirements of self defence and in support, reference was made to the case of OMOREGIE V. STATE (2008)12 SCNJ 721 at 741 where it was stated that all the requirements must be proved and must co-exist. It was argued that the appellant did not make any effort to run away or disengage from the fight but rather removed his machete and inflicted several cuts on the deceased until when people disengaged him and he inflicted more harm than necessary. In support reference was made to the page 26 lines 29-33 of the record and the case of SHANDE V. STATE (2005)6 SCNJ 124 at 131 TO 132. It was urged that the defence doesn’t avail the appellant.
The respondent stated that discretion is the exercise by a judge or Court based on what is fair under the circumstances and guided by the rules and principles of law. It was submitted that by law one cannot lay down hard and fast rule as to the exercise of judicial discretion by a Court, because once that is done the exercise of discretion becomes fettered. In support, reference was made to the case of JOHNSON V. FRN (2016) LPELR 41115 at 35 36. The respondent reproduced Section 224 of the Penal Code and submitted that the lower Court exercised its discretion judicially and judiciously when it sentenced the appellant to life imprisonment. It was urged that the appeal be dismissed.
The foregoing so far are the submissions of the appellant and the respondent on issue number two. The principle of presumption of innocence is an essential foundation in our adversary adjudicatory system and has a secured place in our criminal jurisprudence, which is constitutionally guaranteed. Section 36(5) of the 1999 Constitution (as amended) provides thus:
Every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
By the aforementioned provision, the Constitution clearly placed the burden of proving the guilt of an accused person on the prosecution. The standard of proof, is of course beyond reasonable doubt. See Section 135(1) of the Evidence Act 2011, which provides thus:
If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
See the following cases: WOOLMINGTON V. D.P.P. (1935) AC 462, OKORO V. STATE (2010) 16 NWLR (Pt. 1220)584, OMOTOLA V. STATE (2009) ALL FWLR (Pt. 464) 1490 at 1600, OCHEMAJE V. STATE (2008) 15 NWLR (Pt. 1109)57, ODUNEYE V. STATE (2001) 2 NWLR (Pt. 697)311.
The prosecution therefore owes a duty to prove every ingredient of the offence charged as provided for in the substantive law beyond reasonable doubt. Where the standard of proof is not attained, any lingering doubt will be resolved in favour of the accused. See the following cases: STATE V. DANJUMA (1997) 5 NWLR (Pt. 809)1 at 35-36, ABDULLAHI V. STATE (2008) 17 NWLR (Pt. 1115)203, ONUCHUKWU V. STATE(1998) 4 NWLR (Pt. 547)5 76.
The law is very clear as to the essential ingredients for the offence of culpable homicide not punishable with death as submitted by both the appellant and the respondent to be as follows:
(i) The death of a human being
(ii) That such death has been caused by the accused
(iii) That the act was done with the intention of causing death or that the accused knew that the death would be the likely consequence of his act.
The prosecution is therefore expected to prove the above elements beyond reasonable doubt. The contention of the appellant is to the effect that the prosecution has failed to prove the offence beyond reasonable doubt. The respondent on its part contended the contrary, to the effect that the prosecution had discharged the burden of proving the offence. The prosecution as earlier stated called two witnesses and tendered the confessional statement of the appellant which was admitted in evidence without objection by the defence as exhibit A. The accused now appellant, called no evidence but rested his case on that of the prosecution. It is trite law, that in criminal trials, the guilt of an accused person can be proved by either of the following ways, namely:
(i) Evidence of an eye witness
(ii) Confessional statement of an accused person
(iii) Circumstantial evidence.
See EMEKA V. STATE (2001)14 NWLR (Pt. 734) 666 at 683 AND IGABELE V. STATE (2007)2 NCC 125.
A good starting point is from the fact that it is not in dispute that a human being by name Bukar Shehu has died. See the evidence of PW1 and PW2 and exhibit A. Hence the first requirement of the ingredients of the offence is established. In the instant case the prosecution relied on the confessional statement of the appellant exhibit A which was admitted without objection and the evidence of PW1 and PW2.
A consideration will now be made on the 2nd and 3rd ingredients for the offence as earlier stated. Exhibit A is the confessional statement of the accused. In the said confessional statement the accused/appellant gave a detailed and graphic account of how he gave the deceased deep cuts with his machete until when the deceased collapsed and was rushed to the General Hospital Uba where he was pronounced dead. The said confessional Statement exhibit A was admitted without objection. Where a confessional Statement is admitted without any objection the irresistible inference is that same was made voluntarily and a Court can convict on the basis of the admission contained therein. See AJIBADE V. STATE (2013)6 NWLR (Pt. 1349) 25 at 47.
It is trite law that a free and voluntary confession of guilt by an accused person, if it is direct, positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. Indeed that is why such a confession by itself alone is sufficient without corroboration to warrant a conviction. See LASE V. STATE (2018)3 NWLR (Pt. 1607) 502 at 527, ABDU V. STATE (2006)12 SC (Pt. IV) 103. Hence the appellant can be properly convicted solely on his confessional statement without more as facts admitted need no further proof. See EMEKA V. STATE (2001)14 NWLR (Pt. 734) 666, AMALA V. STATE (2004)12 NWLR (Pt. 888) 520, IKEMSON V. STATE (1989)3 NWLR (Pt. 110) 455, EGBOGHONOME V. STATE (1993)9 SCNJ (Pt. 1)1 at 29 (1993)7 NWLR (Pt. 306)383, EKPE V. STATE (1994)9 NWLR (Pt. 368) 263, AKPAN V. STATE (2001)15 NWLR (Pt. 737)745, AJIBADE V. STATE (2013)6 NWLR (Pt. 1349) 25, LASE V. STATE (2018)3 NWLR (Pt. 1607) 502.
In addition to the confessional statement, the accused now appellant elected not to call evidence or testify in defence but rested his case on that of the prosecution. See page 25 line 6 of the record where counsel representing the accused/appellant stated thus:
Z.M Umar We apply to rest the case of the accused on that of the prosecution.
The election not to give evidence is within the appellants right under the law, but the legal effect of the said election is to leave the Court of trial free to accept the uncontradicted evidence of the prosecution in proof of the charge. See ALI V. STATE (1988)7 NSCC 14 at 22, (1988)1 NWLR (Pt. 68)1, IGHO V. STATE (1978)3 SC 87, STATE V. NAFIU RABIU (1981)2 NCLR 293. By way of emphasis it is to be noted that an accused person who rests his case on that of the prosecution has made a big gamble and taken a serious risk. The accused by so doing, has in effect shut out himself and will have no one but himself to blame. This is so because he does not wish to place any fact before the trial Court, other than those which the prosecution has presented in evidence. It also confirms that he does not wish to explain any fact or rebut any allegation made against him. The rating of the effect is not less than admission of the evidence led by the prosecution. SeeMAGAJI V. NIGERIAN ARMY (2006)6 NWLR (Pt. 975) 100, AJIBADE V. STATE (supra).
Still on the confessional statement, the appellant did not rebut or contradict the prosecutions case. He chose to keep mum within his legal right to do so, without advancing any evidence that he has not committed the offence. The confessional statement was voluntarily made, hence good and credible having been admitted in evidence without any objection from the accuseds counsel. There was also no evidence that the appellant one way or the other retracted from the confessional statement. The only complaint of the appellant on appeal is to the effect that the trial Court never subjected the confession to the various tests to confirm its truth. The trial Court in the instant case on page 33 of the record subjected the confessional statement to the six tests before relying and acting on it to convict the appellant. See AKPAN V. STATE (2001)15 NWLR (Pt. 737)745, YESUFU V. STATE (1976)6 SC 167, JOHNSON V. STATE (2013)3 NWLR (Pt. 1340)78.
On the absence of medical evidence as to cause of death, in homicide cases where the cause of death is obvious medical evidence ceases to be of any practical necessity. Hence where the deceased died almost immediately from the voluntary act of the accused medical evidence will not be necessary, see AIGUOREGHIAN V. STATE(2004)3 NWLR (Pt. 860)367, UGURU V. STATE (2002)9 NWLR (Pt. 771)90. The appellant contended that PW1 and PW2 had stated under cross-examination that the deceased was in hospital for 3 days. This submission is not supported by the evidence on record as none of the witnesses stated so. For the avoidance of doubt, PW1 under cross-examination on page 19 lines 20-25 stated thus:
CROSS-EXAMINATION BY THE ACCUSED COUNSEL, MR. Z.M. UMAR.
I did not see the corpse of the deceased. The deceased died as a result of excessive bleeding. I came to know about it as a result of the medical report. It was not the accused that told me. The accused told me that he retaliated the attack of the deceased. I write my name on exhibit A.
Z.M. Umar – That is all for the witness.
PW2 on the other hand on page 20 lines 27 to 37 of the record stated thus:
CROSS EXAMINATION BY ACCUSED COUNSEL MR. Z. M. UMAR
I did not see the corpse of the deceased. It is contained in exhibit A that I am the interpreter of the statement. Exhibit A is a Police Statement form which does not allow me to write in full that I translated from English language to Fulfulde language and vice versa. But if it were a plain sheet that was used I would have stated that comprehensively. It is only signature that is on Exhibit A to indicate that I interpreted. My primary duty is to interpret which I did. I don’t know whether it is indicated that the accused uncle told the accused that the deceased is dead.
Z.M. Umar – That is all for the witness.
In the instant case the deceased was confirmed dead in the hospital as a consequence of excessive bleeding. The cause of death is obvious and traceable to the act of the accused.
The appellant also complained that the trial Court failed to consider the defence of sudden fight under Section 220(4) and self defence under Section 60 of the Penal Code. It is noteworthy to observe, that as rightly submitted by the appellant, defence of sudden fight only mitigates but doesnt exonerate or exculpate an accused. Hence where sudden fight is raised it only reduces the offence from culpable homicide punishable with death to culpable homicide not punishable with death. In the instant case the appellant was arraigned for the offence of culpable homicide not punishable with death. I do not therefore see the role a defence of sudden fight would have played. As for self defence, a successful plea of it, is a complete answer to a charge of culpable homicide. There has to be evidence that the appellant gave the deceased the several machete cuts in self defence. See BIRUWA V. STATE (1985)3 NWLR (Pt. 11)167. Furthermore on the issue of self deence, the trial Court on page 35 of the record listed the requirements for a successful plea of self defence and held thus in lines 15 to 20.
The accused never went into the witness box to show that he had reasonable grounds to believe that his life was in danger. In fact the accused never placed any evidence for the consideration of the Court and so none of these factors is proved. An accused can only be entitled to the defence of self defence based on credible evidence placed before the Court and there are no two ways about it. This Court can only act based on the evidence placed before it and not on sentiments. Hence the defence of self defence is not available to the accused and I so hold.
Based on the above, the appellant is being unfair on the trial Court to say it has not considered the defence of self defence.
The appellant castigated the lower Court for improper use of discretion in convicting the appellant to life imprisonment. Section 224 of the Penal Code, provides thus:
Whoever commits culpable homicide not punishable with death, shall be punished with imprisonment for life or for any less term or with fine or with both.
Judicial discretion has been defined as the exercise of judgment by a judge or Court based on what is fair under the circumstances and guided by the Rules and principles of law, a Court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right. The exercise of discretion has to be judicial and judicious, hence there is no hard and fast rule of how to exercise it, otherwise it will no longer be called discretion. It is a power or right conferred upon functionaries by law, of acting in certain circumstances, according to the dictates of their judgment, uncontrolled by the judgment or conscience of others. See SULEMAN V. C.O.P. PLATEAU STATE (2008)8 NWLR (Pt. 1089)298, JOHNSON V. FRN (2016) LPELR 41115. Section 224 of the Penal Code has given the trial Court the discretion of sentencing a person convicted of culpable homicide not punishable with death to a term of imprisonment ranging from life imprisonment to any lesser term or fine or with both. See NIGERIAN ARMY V. IYELA (2008)18 NWLR (Pt. 1118) 115, ODUNLAMI V. NIGERIAN NAVY (2013)12 NWLR (Pt. 1367)20, APAMADARI V. STATE (1997)3 NWLR (Pt. 493)289, BABANGIDA USMAN V. STATE (2015) LPELR 40855 (CA).
The discretion must however be exercised judicially and judiciously. Some of the factors to be considered by trial Court while sentencing include inter alia the age of the offender, pleading guilty to the charge and being first offender may assist for a plea in mitigation, on the other hand record of previous conviction, seriousness of the offence, prevalence of the offence, non-repentant attitude of the offender and adverse effect of the offence on the victim and the society are factors that can aggravate the sentence. See TANKO AMINU V. STATE (2009)4 NWLR (Pt. 1147) 430, ALAKE V. STATE (1991)7 NWLR (Pt. 205)567.
The contention of the appellant is that the conviction be set aside as the discretion was exercised wrongly. The appellant is not even asking for a reduction of the sentence. Considering the aforementioned factors in the preceding paragraph, I am of the humble view that the learned trial judge exercised his discretion judicially and judiciously. The appellant having failed to establish that the discretion was improperly exercised, the complaint on this ground is of no moment and it accordingly fails. Consequently issue two is also resolved against the appellant and in favour of the respondent.
Consequent upon the resolution of the two issues against the appellant, the appeal is grossly lacking in merit and is hereby dismissed. The judgment if the Borno State High Court delivered on 31st January, 2017 by Hon. Justice F. Umaru in charge No. BOHC/MG/CR/54/2014 is hereby affirmed.
UCHECHUKWU ONYEMENAM, J.C.A.: I have read before now the judgment just delivered by my learned brother ADAMU JAURO JCA. I agree with the reasoning, resolutions and conclusion reached by his lordship in dismissing the appeal for lacking in merit. I too dismiss the appeal and affirm the judgment of High Court of Borno State delivered on 31st January, 2017 by F. Umaru, J. in suit No. BOHC/MG/CR/54/2014.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege and opportunity to preview the draft of the lead Judgment delivered by my learned brother, ADAMU JAURO, JCA. and I am in total agreement with the reasoning and conclusions reached therein.
To have rested his case on that of the prosecution, the Appellant would appear with his eyes wide open and in full understanding of the implication, was prepared and ready for whatever consequence or result followed. He could therefore no longer complain.
I have nothing else to add and in consequence, also dismiss the appeal and affirm the Judgment of the Court below delivered on January 31st 2017.
Appearances:
T.A. Lenkat holding the brief of H. Hala, Esq.For Appellant(s)
Absent & Not representedFor Respondent(s)
Appearances
T.A. Lenkat holding the brief of H. Hala, Esq.For Appellant
AND
Absent & Not representedFor Respondent
