USMAN MUSA v. THE STATE
(2019)LCN/12537(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of January, 2019
CA/S/66C/2018
RATIO
DOCUMENTS: WHETHER THE PROVISION OF A DOCUMENT SHOULD BE READ IN ITS ENTIRETY
“It is trite law that a provision or document is to be considered in its entirety rather than a clause therein in isolation. See: Chief S. O. Agbereh & Anor vs. Or. Anthony Mimra & Ors. (2008) 1 SCNJ 409. Indeed, in the case of Nigerian Army vs. Brig. Gen. Maude Aminu-Kano (2010) 1 SCNJ 250, the apex Court held that section, subsections, clauses etc in any law made by the legislature are not made for the mere fun of it or for the purposes of meeting the whims and caprices of the interpreter; they must be interpreted to meet the circumstances, issues, conditions or situations for which they are made. Therefore Section 247 of the Criminal Procedure Act is clear and unambiguous.” PER HUSSEIN MUKHTAR, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT OF AN ACCUSED
“The said endorsement is not a requirement of law. It is therefore discernible from above that non-endorsement of the confessional statement of the accused person by a superior police officer would not be fatal to the case of the prosecution much less rendering the said voluntary confessional statement inadmissible. In the case of ABUBAKAR V. THE STATE (1969) Legalpedia SC UW4T, the Supreme Court held thus:- ‘We are firmly of the view that failure to take the statement of an accused person recorded by a police constable to a superior police officer to give the accused an opportunity of confirming or denying the statement cannot, ipso facto, render the statement inadmissible in evidence although it is a matter to be considered in deciding what weight to attach to the statement.'” PER HUSSEIN MUKHTAR, J.C.A.
INTERPRETATION: DEFINITION OF ALLOCUTUS
“Allocutus is defined as plea of leniency by the convicted person before the sentence of the Court. In the case of OLASEHINDE v. STATE (2016) LPELR-41337(CA), it was held per Dentonwest, J.C.A. thus:- ‘I shall reproduce Section 247 of the Criminal Procedure Act hereunder for ease of appreciation. Section 247: “If the Court convicts the accused person or if he pleads guilty, it shall be the duty of the Registrar to ask the accused whether he has anything to say why sentence should not be passed on him according to law but the omission of the Registrar so to ask him or his been so asked by the Judge or Magistrate instead of the Registrar shall have no effect on the validity of the proceedings.'” PER HUSSEIN MUKHTAR, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
USMAN MUSA Appellant(s)
AND
THE STATE Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of High Court of Kebbi State presided over by His Lordship Hon. Justice E. A. Karatu delivered on 18th day of January, 2018.
The Appellant was charged with the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code before the High Court of Kebbi State. The provision of Section 221 of the Penal Code states as follows:
‘Except in the circumstances mentioned in Section 222 Culpable Homicide shall be punished with death
(a) if the act which the death is caused is done with the intention of causing death; or
(b) if the doer of the act knew or had reasons to know that death will be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.’
The evidence against the Appellant was that he, on about the 7th May 2016, used a knife and stabbed one Abdulrasheed Mohd (the deceased) on the stomach which led to the death of the victim on the 12TH day of May, 2016.
The Prosecution called seven (7) witnesses and tendered Exhibits ‘A’ to ‘E’ to prove their case, which include the Hausa and English translated versions of the Appellant?s statement made at the State CIID office in Birnin Kebbi (Exhibits ‘A’ and ‘A1 respectively), a knife suspected to have been used in committing the offence, as Exhibit ‘B’, statement of PW6 as Exhibit ‘C’ and another statement made by the Appellant at the Police Divisional Headquarters tendered in both Hausa and English translated versions as Exhibits ‘D’ and ‘D1’, and medical report as Exhibit ‘E’.
The Appellant testified in his defence without calling any witness. The trial Court in its judgment found the Appellant guilty and convicted and sentenced him to death by hanging. The Appellant was dissatisfied with the said judgment and challenged same by filing a Notice of Appeal predicated upon four grounds thus:
GROUND ONE
The learned trial judge erred in law when she held that, ‘Going by the facts in this case, the accused person having disarmed the deceased of his knife, he was no longer under any fear or threat.’
PARTICULARS OF ERROR
1. That the trial Court did not properly evaluate the testimony of the appellant vis-a-vis his defence of self-defence.
2. That the Court did not consider the appellant’s life was so endangered by the act of the deceased particularly when the deceased attacked the appellant at about 12:00 am by the bush side.
3. That the prosecution did not disapprove the appellant defence of self-defence.
4. That the appellant testimony that he was not ready to fight the deceased and withdrew from the engagement with the deceased was not evaluated by the trial Court.
5. That the appellant was helpless due to the deceased who overpowered him.
6. That the appellant testimony of self-defence was not controverted nor challenged by the prosecution.
GROUND TWO
The learned trial judge erred in law when she held that;
“I find you Usman Musa guilty as charged and accordingly convict you for the offence of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code …”
PARTICULARS OF ERROR
1. That the prosecution did not prove its case beyond reasonable doubt as required by Section 221 (b) of Penal Code.
2. That the prosecution did not prove the ingredients of the offence of culpable homicide punishable with death.
3. The trial Court did not consider the testimony of PW1 which he confirmed during cross examination that he was told to obtain the statement of the appellant.
4. That the evidence of tile prosecution witness (PW6) is contradictory when he said he registered the knife with serial NO: 5/2016 and tendered Exhibit “8” with serial NO: 45/2016 and the trial judge relied heavily on the contradictory evidence of PW1 to convict and sentenced the appellant which occasion miscarriage of justice.
5. That the trial Court allowed the prosecution to interfere during cross-examination to tell the witness that the exhibit number was not 5/2016 but 45/2016 which occasioned miscarriage of Justice.
6. That the trial Judge made a bench ruling on (as 0 issue of) Exhibit 8 during Cross Examination which, (same) is unknown to law.
7. That the contradictory and inconsistent evidence of PW6 was like a script to convict the appellant at all cost.
8. That any contradiction or inconsistent in the prosecution case should be settled in favour of the accused.
GROUND THREE
That the trial Judge erred in law when she denied the appellant or his counsel to make allocutus on behalf of the appellant when he was convicted.
PARTICULAR OF ERRORS:
1. That the trial Judge did not give the appellant any chance to make allocutus.
2. That the Judgment of the trial Court was read in breach of Section 36(1), (3) and (4) of the Constitution of the Federal Republic of Nigeria 1999 (as mentioned). See the case of Mohammed V State (2016) ALL FWLR (pt. 826) 582.
3. That the appellant was not aware of the Judgment of the trial Court against him.
4. GROUND FOUR
The Sentence of the trial Court is excessive and unreasonable
PARTICULARS OF ERROR
1. That the trial Court did not considered the age of the appellant.
2. The trial Court did not consider the defence of the appellant before sentencing him to death by hanging.
3. The judgment of the trial Court is unwarranted, excessive and unreasonable. See OMOKUWAJO v FRN (2013) 6 SCM PG. 193.
4. That the sentence should not have been death by hanging.
The Appellant submitted the three issues for determination, which have been adopted as well by the Respondent, thus:
1. Whether the trial Court was right when it failed to properly consider the appellant’s defence of self-defence even when the evidence is irresistible? [and or whether the appellant was not in danger, fear and threat to his life?]
(The issue is distilled from ground one),
2. Whether the trial Court was right to have convicted the appellant under Section 221 (b) of the Penal Code when the prosecution did not prove its case beyond reasonable doubt? (The issue is distilled from ground two)
3. Whether the trial Court was not in error when it disallowed the appellant to make allocutus before the conviction whether the appellant fair hearing was not breached? (the issue is distilled from ground three)
The first issue for determination is a poser on whether the trial Court was right when it failed to properly consider the appellant’s self-defence? The pregnant part of the issue has been discarded as no more than one issue is allowed to be raised from any one ground of appeal. Proliferation of issues is detested by whatever guise.
It was argued for the Appellant that the Courts are enjoined to follow the principles of law and evidence in determining any case, particularly in a criminal trial. In the instant issue for determination, the grouse of the appellant is the inappropriate treatment of his defence of self-defence regarding the charge against him.
It was argued for the Appellant that there was copious evidence of self-defence is contained in the appellant’s testimony as DW 1, which is reproduced as follows:
“My names are Usman Musa. I used to live in Karamar Damba in Kokol Besse LGA in Kebbi State, Karamar Damba. I am 20 years old. I am a farmer. On 7/05/2016 I was in a village called Hirini in Karamar Damba District after I return from the market where I met (with) the deceased i.e. Abdulrasheed together with other people. After we exchanged greetings, when I was about to go home, the deceased called me back (and said) that he wanted to talk with me. (He said) that there was a time during the celebration of his friend’s marriage when I told him some abusive words which I knew very well. I then told him to remind me of the words and if what I said were offensive, he should forgive me. But he said he did not call me to apologize. I then told him to forgive me in view of the relationship between our parents since ‘my father is the master over his father’.
He then said that the words I used initially which offended him. I have just repeated the same words which were very offensive. If I knew these were offensive, I would have asked for his forgiveness and I left. I told him that all I asked for was peace. One of our friends called Hassan came in and pleaded for peace between us and asked me to go away.
At about 12.00 am midnight I went and bought a cup of tea and I was on my way going to our house, it was at midnight and I do not know that somebody was behind me, I then felt someone held my shirt from back and dragged me and pushed me forward and I fell down, I was afraid as I did not know who it was. I then saw that it was the deceased who pushed me and pounced on me. I struggled to release myself as I could not shout and when I saw that he overpowered me and held my neck. I then saw a barbing knife on the deceased’s pocket which cut him the deceased on his waist and the accused went on pushing the knife so as to cut him but I did not even know that he had a knife on him. He also said that if he had remembered that he had a knife on him, he would have used it to stab me but due to the injuries he sustained, he could not harm, and so the deceased left and I also left to my house. He said he wanted to beat me up and show me a lesson so that in future I will not insult him.”
The appellant (DW1) further testified thus:
“if I had not tried to free myself from the deceased, he would have killed me since he overpowered me and there was nobody to separate us. All I did was to defend myself since there was no help for me.”
It was further argued for the Appellant that the Appellant defended himself against the deceased considering the fact that the deceased attacked him at odd hour of the day and the accused person was over powered by the deceased at that particular time with nobody around to rescue the Appellant from the deceased, he was in constant fear and threat from the deceased during the whole fight that ensued between him and the deceased contrary to what the learned trial judge stated in her judgment at page 84 of the record where she held as, follows;
“Going by the facts in this case, the accused person having disarm the deceased of his knife, he was no longer under any fear or threat and so there was no reason for him to bring his own barbing knife from his pocket and stabbed the deceased on the stomach and ribs. It is my view that the defence does not avail the accused person and I so hold.”
It was further argued for the Appellant that the confessional statement of the appellant at the divisional police station Exhibits D & D1 support the appellant’s defence of self-defence. It was submitted that the scenario that led to the death of the deceased (Abdulrasheed) was not intentional but was occasioned by the persistent pushing to fight at all cost by the deceased at an odd hour with knife and with no one around to separate them.
It was further submitted for the Appellant that since there is no direct evidence as to the fight other than the evidence of the accused person, the Court should at least consider the evidence of the accused person as to the circumstance between him and the deceased and should also be guided by confessional statement at divisional police station tendered as Exhibits D & D1.
The Learned Counsel for the Appellant observed that the whole evidence in this case established the fact that there was fight between the Appellant and the deceased. He argued that it was the deceased that orchestrated the fight as a result of what the Appellant told him.
The Court was urged to resolve this issue in favour of the appellant.
On behalf of the Respondent, it was argued that it is not a matter of saying I killed the deceased in order to defend myself. It must go beyond that and the accused must place material evidence before the Court to allow him benefit from such defence.
In the case of ADAMU SHEIDU VS THE STATE (2014) Legalpedia SC LRVR the Supreme Court outlined the legal principle as far as self-defence is concerned. The Court decided on the effect of successful plea of self-defence which exculpates the accused from criminal liability, the onus on the prosecution to prove that self-defence is not available to the accused where it is raised, ingredients for establishing self-defence in an offence of culpable homicide and other issues relating to self defence.
The Supreme Court in the case of ADAMU SHEIDU VS THE STATE (supra) per OKORO, JSC stated the effect of successful plea of self-defence as follows-
“The provision of Sections 33(2) (a) of the 1999 Constitution of the Federal Republic of Nigeria, and Sections 65 and 66 of the Penal Code declare that where a person is killed as a result of the use of reasonably necessary force to such extent and in such circumstances as is permitted by law in one’s personal defence from unlawful violence or for the defence of property, the death is justifiable and does not violate the right to life. Such a defence, where it avails an accused person, justifies or excuses by law the act or omission of the accused thereby rendering him not liable for the offence charged. It is usually a complete defence to the charge where it is upheld. The sum total of this is that where the defence of self-defence succeeds, the accused person must be discharged and acquitted because he was at the time of killing in reasonable apprehension of death or grievous bodily harm, and felt that it was necessary at the time to use the force which resulted in the death of the deceased in order to preserve himself from danger.”
In the same case, the Supreme Court also per OKORO JSC stated that the onus is on the prosecution to prove that self-defence is not available to the accused where it is raised where the Apex Court held thus:
“Whenever a defence of self-defence is raised by an accused person, apart from the accused leading evidence to show that he is entitled to the defence, the onus is still on the prosecution to establish that the defence in the circumstance is not available to the accused.”
The Supreme Court further held per Okoro, JSC in respect of ingredients for establishing self-defence in an offence of culpable homicide as follows:-
“For a successful plea of the defence of self-defence by an accused person charged with the offence of culpable homicide punishable with death under the penal code, the following must be established by credible evidence:
1. That his life was actually threatened or endangered by the acts of the deceased;
2. That the only option that was opened to him to save his or her life was to use force which was necessary on the deceased at the material time;
3. That the amount of force used on the deceased was proportionate to the threat or danger posed by the acts of the deceased;
4. That he did not take an undue advantage of the deceased in the process of saving his own life from the danger or threat posed by the deceased.
It was submitted for the Respondent that the prosecution had punctured the plea of self-defence raised by the Appellant at the trial Court by the credible evidence adduced by the Respondent. The prosecution in its written address before the trial Court argued as follows-
“On the issue of self-defence as raised by the Accused person as DW1, we submitted that the accused person cannot rely on self-defence going by the criteria set by the Supreme Court in the case of Uwagboe vs State (2008) NCC 3 pg 60 “the defence of self-defence is open only to an accused person who is able to prove that he was a victim of unprovoked assault, causing him reasonable apprehension of death or grievous harm. But he is even entitled to use such force to defend himself as he believes to be necessary to preserve himself from danger.”
It was further argued that the Appellant used excessive force to avert, whatever danger he may have perceived, having regard to the nature of injuries he inflicted to the deceased. Reference was made to Exhibits A & A 1, D & D1, B and E.
Moreover, the trial Court in its well-considered judgment evaluated the issue of self-defence raised by the defence, wherein the Court believed with the submissions of the learned prosecution counsel and the evidence adduced by the prosecution. The trial Court held thus: –
“The defence counsel has rightly recommended to the Court the case of Eze Vs the State (2015) All FWLR (pt. 811) 1416 paras B-C where it was held that self defence is a complete to a charge of murder if it succeeds. To avail the accused person of the defence, he must show that his life was so endangered by the act of the deceased that the only option left for him to save his own life was to kill the deceased. He must show that he did not want to fight and prepared to withdraw. Going by the facts in this case, the accused person having disarmed the deceased of his knife, he was no longer under any fear or threat and so there was no reason for him to bring out his own barbing knife from his pocket and stabbed the deceased on the stomach and ribs. It is my view that the defence does not avail the accused person and I so hold.”
In the case of BELLO V FRN (2018) LPELR- 44465(SC) the Supreme Court per Peter Odili, JSC held-
“It is indeed trite that a Court must consider all the defences open to the accused including even that which accused has not raised or proffered. That principle however cannot be applied in a vacuum as the defence or defences must align with facts available to the Court. It cannot be said that once an accused assert that a particular defence avail him the Court is obligated to granting that wish without a backing by evidence acceptable, cogent and showing to demolish the version of the transaction as proffered by the prosecution. I place reliance on the cases of Ahmed v the State (1999) 7 NWLR (pt. 612) 641 at 681; Akpabio v the state (1994) 7 NWLR (pt.359) 635 at 671.”
The Learned Counsel for the Respondent submitted that the findings of the Court below have been substantiated by credible evidence. The Appellate Court cannot disturb the evaluation of evidence if done satisfactorily. See the case of NKEBISI V. STATE (2010) 5 NCC 84 at 90; ONWUBE V. NDUBA (1972) 3 S.C 106 where the Supreme Court held per Coker, JSC thus:
“This case easily revolves itself on facts. The findings of the learned trial Judge who saw and heard the witnesses are amply supported by the evidence which he accepted. Before us on appeal feeble attempts were made to disparage those findings; but we are satisfied that these are not sufficient to warrant our interfering with the considered judgment of the learned trial Judge.”
It was further argued for the Appellant that Courts are to consider statement of an accused person at the police as extra judicial statement but not his evidence. It was submitted that it is a misconception of law to ask the Court not to treat the statement of the accused person admitted and marked in evidence before the Court of law as part of the evidence before the Court. It was decided in the plethora of judicial authorities that once an extrajudicial statement of the accused person volunteered to the police is tendered and admitted in evidence it become evidence before the Court. If the statement is confessional the Court can convict solely on it once it is direct, true, cogent, voluntary and compelling.
The Supreme Court in the case of GANA V FRN (2018) LPELR-44344 (SC) Per Aka’ahs, JSC held-
“it is however settled law that where evidence is given by a party and is not contradicted by the other party who has the opportunity to do so, and such evidence proffered is not inherently incredible and does not offend any rational conclusion or state of physical things the Court should accord credibility to such evidence. See: OKOEBOR V. POLICE COUNCIL (2003) 12 NWLR (pt. 834) 444: OMOREGBE V. LAWANI (1980) 3-4 SC 108 AT 117 and MAINAEGE V. GWAMNA (2004) 7 SC (pt. 11) 76AT 92.”
Similarly, in the case of AWOSIKA V. STATE (2018) LPELR- 44351 (SC) the Supreme Court per SANUSI, JSC held-
“it is clear from the record of appeal, that when the prosecution sought to tender the appellant’s confessional statement through PW4, the defence counsel did not raise any objection hence the trial Court without any hesitation admitted the appellant’s confessions and statement was earlier endorsed by superior police officer in the presence of the appellant herein. Since the defence did not challenge the voluntariness of the said statement (i.e. Exhibit A) when tendered in evidence, the trial Court was duty bound to admit and accept it and to subsequently act on same to convict the appellant.”
The Court was urged to resolve issue one in favour of the Respondent and against the Appellant.
From the totality of the evidence adduced at the trial Court, the submissions of the prosecution counsel, the holding of the trial Court and the cases cited above pointed to the same direction and concluded that the accused person did not successfully raise self-defence in the instant case. The law and facts as far as this case is concerned do not favour the Appellant’s claim of right to self-defence. Issue one is resolved against the Appellant.
ISSUES TWO AND THREE:
Both issues 2 and 3 are predicated upon an allegation of wrong conviction and sentencing. The two issues read thus:-
2. Whether the trial Court was right to have convicted the appellant under Section 221 (b) of the Penal Code when the prosecution did not prove its case beyond reasonable doubt?
3. Whether the trial Court was not in error when it disallowed the appellant to make allocutus before the conviction?
The learned Counsel for the Appellant arguing the two issues submitted that it is an established principle of law that he who asserts must prove. This provision is provided for under Section 131 & 135 of Evidence Act (as amended) 2011.
Section 131 provides thus
“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.”
Also Section 135 of the Evidence Act Provide that
“It the commission of a crime by a party to a proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
Reliance was also placed on the case of ADAMU V STATE (2016) ALL FWLR (PT. 852) PG 1594 PARAS E-F where it was held thus:
” … the law is trite; the commission of a crime by an accused person must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the person who asserts it. The burden of proof lies on the prosecution and it never shifts. If in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof laid on it by law and the accused is entitled to acquittal.”
In the case of EMMANUEL EGWUMI V. THE STATE (2013) ALL FWLR (PT. 678) AT PAGE 833 SC the Supreme Court held thus:
“…The prosecution in a criminal matter has the onus always to prove the accused guilty beyond reasonable doubt before his conviction can be sustained
The Learned Counsel for the Appellant submitted that the evidence of PW6 is contradictory and inconsistent hence the Court cannot rely on such inconsistent and contradictory evidence of a police officer, who identify himself as exhibit keeper and had been at that section for 5 years. A criminal case is a serious business. All the elements of the offence under Section 221(b) of the Penal Code must be proved beyond reasonable doubt particularly considering the heavy nature of this case.
It was submitted for the Appellant that the evidence of PW6 is like a script to nail the accused person at all cost despite the contradictions and inconsistency of testimony that cast doubt in the mind of the Court in doing justice accordingly, it is the law that any doubt should be resolved in favour of the accused person. See the case of SANI VS STATE (2015) ALL FWLR (PT. 811) PG. 1319 PARAS G-H where it was held as follows;
” … The law is well settled that where there is doubt in a criminal trial, such doubt is resolved in favour of the accused person… Where prosecution evidence is found to be contradictory on a material issue, the Court should give the benefit of that doubt to an accused person that stems from the non-credibility of such evidence and discharge and acquit.”
See also the case of OLADEJO VS THE STATE (1987) 3 NWLR (PT. 61) @ PG. 419 where the Court held inter alia thus
“…Where there are inconsistent statements, the time honored principle of law would require that the evidence given at the trial be disregarding and treated as being unreliable… ”
It was submitted that the PW6 was never at the scene of the incidence neither was he part of the team who recovered the alleged knife. And he could not confirm the veracity of the Exhibit B he tendered at the trial Court.
Equally also PW1 who give PW6 Exhibit B (knife) testifies on the non-confirmation of that exhibit whether it is the one used by the appellant and or it was recovered from the scene and had never been at the scene at all, even though he is an investigation officer. He testifies under cross-examination thus
“I am not sure if the knife that was brought from koko was the knife used by the accused person against the deceased, I will not be surprised if another knife was brought to the Court, I was not at the scene of crime. I neither saw deceased alive nor his death body.”
It was further submitted that the prosecution in attempt to prove its case failed to establish the nature of the knife as allegedly used by the accused person, its weight and size to support the verdict of Court below. See the case of ALI V THE STATE (2015) 5 SCM 31 HOLDING 5 where it was held inter alia that; “… in a charge of culpable homicide, the nature of the weapon used, its weight and size are in the circumstance of the case essential in the determining whether the conviction should be one of culpable homicide punishable with death or not…”
It was further argued that the purported statements (Exhibits D, AND D1) of the accused person cannot be used against the accused person because Exhibit D1 was made in Hausa Language, which is not the language of the Court, and by implication, the Court cannot in any anyway attach any weight to it. Also Exhibit D1 which is the English translated version of Exhibit D1 is a statement not endorsed by a superior police officer. See the case of ABDULLAHI VS STATE (2017) ALL FWLR (PT. 869) (PG. 900) where it was held that; failure to take the statement of an accused person to a superior police officer to have the statement counter sign would affect the weight to be place on the statement… ”
Based on the foregoing, it was submitted for the Appellant that the Court should not attach any weight to Exhibits D1 and D2.
Arguing the third issue, the Learned Counsel for the Appellant contended that the trial Court was not in error when it disallowed the appellant to make Allocutus before the conviction?
It was submitted that the judgment of the trial Court was delivered in contravention of Section 36(1)(3) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and that the procedure of the judgment amounted to denial of fair hearing on the part of the Appellant.
The Court was urged to resolve the second and third issues in favour of the Appellant and against the Respondent and allow the appeal.
The Learned Counsel for the Respondent, however, submitted that the provisions of Sections 239(1) of the Criminal Procedure Code, 83(1) and (2) of the Evidence Act 2011 And cases of ABDULLAHI VS STATE (2017) ALL FWLR (PT. 869) PG 900 HOLDING 3, SUBERU VS THE STATE (2010) 5 SCM, OLUGUN VS FATAYO (2014) ALL FWLR PT. 749 PG 1157 HOLDING 3, SANI VS STATE (2015) ALL FWLR (PT. 811) PG 1319 PARAS G-H, OLADEJO VS THE STATE (1987) 3 NWLR (PT. 61) @ PG 419, ALl V THE STATE (2015) 5 SCM 31 HOLDING 5, HARUNA V K.S.H.A (2010) 7 NWLR (PT 1194)PG 604 @ 610, MAERSK VS WINLlNE NIG LTD (2015) ALL FWLR (PT. 808) PG 686 PARAS F-G, OMEGA BANK NIGERIA PLC VS O.B.C. LTD (2005) 8 NWLR (pt. 249) 1964at 582 B to 583 A-B, EZE V STATE (2015) ALL FWLR (pt. 811) pg 1424 para B, ANYANWU V SAGRANI (2008) ALL FWLR (PT. 426) PG 1995 AT 2005 PARAS A-N, ANPP VS USMAN (2009) ALL FWLR I (PT 463) PAGE 1292 AT 1344 PARAS A-B, OMOKUWAJO V FRN (2013) 6 SCM PG 193 HOLDING 7, cited in the appellant brief of argument were misconceived, misapplied and misunderstood by the Appellant.
It was submitted for the Respondent that Section 249(3) of the Criminal Procedure Code was rightly relied upon by the trial Court in admitting the medical report showing the cause of death of the deceased. See the case of OKON NSIBEHE EDOHO V THE STATE (2010) Legal pedia SC VQW 9, where the Supreme Court per ADEKEYE J.S.C held thus:-
“A written report by any medical officer or registered medical practitioner may at the discretion of the Court be admitted in evidence for the purpose of proving the nature of any injuries received by and the physical cause of the death of any person who has been examined by him.”
The Court further went ahead in the same case, to state when evidence of public officers can be given in their absence and held:-
“Section 34 (3) of the Evidence Act can be invoked to tender any evidence of a witness which is relevant to a subsequent judicial proceedings to ascertain the truth of the facts which it states, when the witness is dead and cannot be found, or is incapable of giving evidence, or is kept out by the adverse party or when the absence cannot be obtained without an amount of delay or expense which in the circumstance of the case the Court considers unreasonable.”
Section 39 of the Evidence Act 2011, which is mutatis mutandis the same with Section 34(3) of the erstwhile Evidence Act, provides thus:-
“Statements, whether written or oral of facts in issue or relevant facts made by person (a) who is dead; (b) who cannot be found; (c) who has become incapable of giving evidence; or (d) whose attendance cannot be procured without an amount of delay or expenses which under the circumstances of the case appears to the Court unreasonable, are admissible under Sections 40 to 50.”
It was further submitted for the Respondent that endorsement by a superior officer of the confessional statement is a mere practice. The said endorsement is not a requirement of law. It is therefore discernible from above that non-endorsement of the confessional statement of the accused person by a superior police officer would not be fatal to the case of the prosecution much less rendering the said voluntary confessional statement inadmissible. In the case of ABUBAKAR V. THE STATE (1969) Legalpedia SC UW4T, the Supreme Court held thus:-
“We are firmly of the view that failure to take the statement of an accused person recorded by a police constable to a superior police officer to give the accused an opportunity of confirming or denying the statement cannot, ipso facto, render the statement inadmissible in evidence although it is a matter to be considered in deciding what weight to attach to the statement.”
In the case of EBAGUA V ATTORNEY GENERAL, BENDEL STATE (IN RE: GABRIEL OSAKWE) [1994] 2 NWLR (Pt. 326) 273 the Supreme Court Per IGUH, JSC held-
“As earlier indicated, the appellant’s statement to the police, Exhibit 6, was duly confirmed before a Superior Police Officer, P. W 2. But it must be stated that it is not the law that a free and voluntary confessional statement must be confirmed before a Superior Police Officer to be properly proved or admissible. Confirmation of confessional statements before a Superior Police Officer has however been commended by this Court in a number of cases. See R. V. Omerewure Sapale (1957) SCNLR 307; Nwighoke & Ors. v. R. (1959) 4 F.S.C.101; Chungwom Kim v. The State (1992) 4 N.W.L.R. (Pt 233) 17. It ought also to be emphasised that where a Court is expected to attach some weight to a confessional statement purported to have been confirmed before a Superior Police Officer, it is desirable that the laid down procedure for such confirmation should be followed. See David Obue v. The State(1 976) 2 S.C. 141.”
In the case of MONDAY EDHIGERE V. THE STATE [1996] 8 NWLR (Pt. 466) 1, the Supreme Court further held-
“The issue about failure to have the confessional statement attested by a Senior Police Officer is another weak argument. This Court had said it several times in reported cases that the administrative practice of confirmation of confessional statements before a senior Police Officer is not a legal requirement which if not complied with would render the confession unreliable. No general rule has been laid out that the practice must be observed. R. v. Nwigboke (1959) SCNLR 248: (1959) 4 F.S.C. 101. See also Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383.”
It was further submitted that Exhibits D and D1 were rightly and properly admitted in evidence by the trial Court. It was further submitted that the statement of the Appellant was rightly recorded in hausa language, which was the language spoken by the Appellant, though it was not the language. On whether the statement of the accused person ought to be taken in the language of the Court, Olatawura, JSC (of blessed memory) observed in the case of NWORIE NWALI VS THE STATE (1991) Legalpedia SC K503 thus: –
“In our judicial system, and because Nigerians of different tribes now administer justice, the proceedings in the Court of trial must of necessity be recorded in English language. The set-up of our Courts demands that the English language will still be used. It is for this reason that when a statement is recorded in vernacular from a witness or an accused, there is always an English translation.”
In the same vein, in the case of ISIKILU OLANIPEKUN v. THE STATE (2016) Legalpedia SC TB7W, the Supreme Court per K. B. AKA’AHS, J.S.C. further held-
“Statements should be, wherever practicable, recorded in the language in which they are made. This is a practical wisdom directed to avoid technical arguments which could be raised. It is not an invariable practice but one to ensure the correctness and accuracy of the statements made by accused persons. See: Olalekan v. State (2001) 18 NWLR (Pt. 746) 793.”
The issue of admissibility, weight and endorsement of the statement of the accused was adequately considered by the trial Court in its judgment, where the Court held thus: –
“With due respect to the learned defence counsel, I fail to agree with the submissions and all the cases cited in support. The endorsement by a Superior Police Officer is only desirable and not a mandatory procedure where the statement was not endorsed, it should not be viewed with suspicion as there are other overwhelming evidence apart from Exhibits D and D1 which was recorded at Koko Division of the NPF. Exhs. A and A 1 recorded at the State CID office Birnin Kebbi which was endorsed by a SPO by name ASP Adamu Muhammed. It is the original statement recorded in the language spoken by the accused person that is being read over to him and if he says it is correct, it will then be endorsed by the SPO and not the English translation which the accused person does not understand or speak but because it is the official language of the Court which was what happened in this case.
The procedure is therefore proper and the statement was rightly admitted by the Court. Moreover, the contents in both Exhibits A and A 1 is the same with Exhibit D and D1 and so even if the weight in Exhibit D and D1 is affected, that will not affect the statement in Exhibit A and A1, this issue is therefore resolved in favour of the prosecution.”
The Appellant in the instant case did not deny his statement and/or did not argue on whether or not the prosecution had proved its case beyond reasonable doubt as required by law. It was further submitted for the Respondent that the pieces of evidence adduced by the prosecution are cogent, direct, positive and not controverted by the Appellant at the trial Court. It is trite that where the evidence is direct, cogent, admissible and compelling, the Court has to act on it. See the case of OKOH V. STATE (2014) 57 NSCQR (pt. 11) 732 at 741 RATIO 22.
On issue three, it was argued for the Respondent that the provisions of Section 36(1), (3) and (4) of the Constitution of the Nigeria 1999 (as amended) and Section 268(1) of the CPC were not in anyway violated. Reference was made to the Court proceedings of 18th January, 2018 as shown in the record wherein the Appellant was not only physically in Court but was also represented by Nura Bello, Esq., of counsel holding the brief of Rilwanu Umar for the accused person. The proceedings were fully interpreted by the Court Clerk Hussaini Muhammed who affirmed to interpret the proceedings from English to Hausa and vice versa. The judgment was then delivered and the Appellant was convicted and sentence to death.
Allocutus is defined as plea of leniency by the convicted person before the sentence of the Court. In the case of OLASEHINDE v. STATE (2016) LPELR-41337(CA), it was held per Dentonwest, J.C.A. thus:-
”I shall reproduce Section 247 of the Criminal Procedure Act hereunder for ease of appreciation. Section 247: “If the Court convicts the accused person or if he pleads guilty, it shall be the duty of the Registrar to ask the accused whether he has anything to say why sentence should not be passed on him according to law but the omission of the Registrar so to ask him or his been so asked by the Judge or Magistrate instead of the Registrar shall have no effect on the validity of the proceedings.”
This provision is both clear and self-explanatory that it is ideal that after conviction, the Registrar is expected to ask the accused or convict whether he has anything to say before sentence is pronounced on him. The same section also provided that failure of the Registrar to ask or the fact that it was the Judge or Magistrate as the case may be that asked the accused, cannot invalidate the proceedings. It is difficult to agree with the learned counsel for the Appellant submission ? that failure to afford the accused right to plea of “allocutus” constitutes a breach of Section 6 (6)(b) of the Constitution of Federal Republic of Nigeria 1999 (as amended). Section 6(6)(b) of Constitution of Federal Republic of Nigeria 1999 (as amended) ? It is common knowledge that the preparation and indeed the defence of an accused person ends upon conviction. That being the case, right of allocutus that comes after conviction cannot be said to be part of defence as envisaged by Section 6(6)(b) of the Constitution of Federal Republic of Nigeria 1999 (as amended). Again, the manner of interpretation of Section 247 of the Constitution of the Federal Republic of Nigeria employed by learned counsel for the Appellant vide Paragraph 6.7 of his brief is as confusing as it is unknown to law.
A section of a statute cannot be correctly interpreted without considering its proviso. But herein, the approach adopted by the learned Appellant’s counsel is such that while the first arm of Section 247 of the Criminal Procedure Act conforms with Section 6 (6)(b) of Constitution of Federal Republic of Nigeria 1999 (as amended), the second arm breaches the said section of the Constitution. In other words, learned counsel carried out surgical operation on Section 247 and thereafter pick and chose the favourable parts. That cannot be. Black’s Law Dictionary, 8th Edition at Page 1262, defines the word “proviso”, thus: “1. A limitation, condition, or stipulation upon whose compliance a legal or formal document’s validity or application may depend. 2. In drafting, a provision that begins with the word “provided that” and supplies a condition, exception or addition.”
This definition makes it clear that a “proviso” acts as a limitation, condition or exception to the main provision. The main provision cannot be read in isolation of the proviso, otherwise the meaning will be lost.
It is trite law that a provision or document is to be considered in its entirety rather than a clause therein in isolation. See: Chief S. O. Agbereh & Anor vs. Or. Anthony Mimra & Ors. (2008) 1 SCNJ 409. Indeed, in the case of Nigerian Army vs. Brig. Gen. Maude Aminu-Kano (2010) 1 SCNJ 250, the apex Court held that section, subsections, clauses etc in any law made by the legislature are not made for the mere fun of it or for the purposes of meeting the whims and caprices of the interpreter; they must be interpreted to meet the circumstances, issues, conditions or situations for which they are made. Therefore Section 247 of the Criminal Procedure Act is clear and unambiguous.”
The Court was urged to resolve both issues 2 and 3 against the Appellant and in favour of the Respondent and ultimately dismiss the appeal as lacking in merit and affirm the judgment including the conviction and sentence passed by the trial Court on the appellant.
It is trite law that where there is doubt in the mind of the Court in a criminal matter it ought to be resolved in favour of the accused person.
The consideration of the case that led to conviction for the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code had been based on the finding that a knife was the weapon used by the Appellant and also the vital part of the deceased body where injuries were inflicted. However, the fact that the deceased lost his life as a result of sudden fight must inevitably affect the result of this appeal. It will not affect it to the extent of an acquittal for the appellant himself has admitted being in a fight in the course of which he inflicted injuries on Lawal Mohammed from which he died. It would seem to me that in such circumstances, this case falls within the provisions of Section 222(4) of the Penal Code. That Section provides thus: –
?Culpable homicide is not punishable with death if it is committed without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel and un-usual manner.”
It is immaterial in such cases which party first provoked the other or commits the first assault. The fact remains, as agreed on all sides, that the Appellant and deceased were engaged in an unpremeditated sudden fight or sudden quarrel in a heat of passion and the injuries which the deceased sustained thereat resulted in his death.
The word ‘sudden’ implies that the fight should not have been prearranged. Being merely involved in a fight does not entitle an accused to invoke this sub-section. In order to bring in the subsection the fight must be unpremeditated. If, in any sudden quarrel blows pass without any intention to kill and in the course of the scuffle after the parties are heated by the contest, one kills the other with a deadly weapon this subsection may well have effect.
The lapse of time between the quarrel and the fight which ensues is a very important consideration. Thus, if there are intervals and sufficient time for passion to subside and for reason to interpose itself the killing may be culpable homicide punishable with death. The fight must not only be sudden but the party assaulted must be on an equal footing from the point of view of defence at least at the beginning of the fight. In Stephen Oji v The Queen (1961) N.R.L.R. 93 or (1961) All. N.R. 262, the Supreme Court held thus:
“The person entitled to the benefit of the subsection is the person actuated solely by the natural aggressiveness which the heat of passion in a sudden fight might be expected to inspire and a person acting in a cruel or unusual manner is deprived of the benefit of the subsection because he shows by his actions that he is not actuated solely by natural aggressiveness. ‘Acting in a cruel manner means acting in a manner which indicated a delight in causing pain for its own sake.’ ‘Acting in an unusual manner means acting in a manner which indicated some other intrusive motive.’
It is as well trite that the weapon used in this case, which was a knife, was a general working tool for local barbers, which both the deceased and the Appellant were. Moreover, evidence including the Appellant?s own confessional statement proved beyond reasonable doubt that the incidence in question was an unpremeditated fight in which the deceased sustained injuries that ultimately resulted in his death. In view of the appraisal herein, I am focused to resolving the last two issues partly in favour of the Appellant regarding only the nature of conviction and sentence imposed by the Court below.
I am therefore of the view that the Appellant should have been convicted under Section 222(4) of the Penal Code for culpable homicide not punishable with death. In all these circumstances, I would allow the appeal partly and set aside the judgment of the Kebbi High Court dated 18th day of January 2018. In its place, I find the Appellant guilty of Culpable homicide not punishable with death under Section 222(4) of the Penal Code and convict him accordingly. The Appellant is sentenced to 10 years imprisonment, with hard labour, to take effect from the 7th May, 2016 the day he was arrested and placed in custody.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother HUSSEIN MUKHTAR, JCA just delivered and I am in agreement with his reasoning and conclusions in partly allowing the Appeal. Consequently, the judgment of the Court below delivered on the 18-1-2018 in which the Appellant was convicted of the Offence of culpable homicide punishable with death under Section 221(b) Of the Penal Code is hereby set aside.
I am in further agreement with my learned Brother that the Appellant should have been convicted under Section 222(4) of the Penal code for culpable homicide not punishable with death in view of the surrounding circumstances leading to the commission of the offence. I also abide by the consequential made by Court thereto.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance the lead Judgment just delivered by my learned Brother Honourable Justice Hussein Mukhtar PJCA. I agree entirely with the reasoning and conclusions therein. The Appeal succeeds in part. The Appellant is sentenced to 10 years imprisonment with hard labour, to take effect from 7th May, 2016 the day he was arrested and put to custody.
Appearances:
Rilwanu Umar, Esq.For Appellant(s)
L. H. Garba, Esq., (DDPP, MOJ Kebbi State)For Respondent(s)
