ADAMU ALHAJI HASSAN v. THE STATE
(2017)LCN/9654(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of March, 2017
CA/J/317C/2016
RATIO
OFFENCE OF MURDER: DUTY OF THE PROSECUTION TO SUCCEED IN A CHARGE OF MURDER
The law is indeed well settled that to succeed in a charge of murder as the appellant was charged in the present case, the prosecution must prove: 1. that the deceased died 2. that the death of the deceased resulted from the act of the accused. 3. that the act of the accused in causing the death of the deceased was done intentionally with the knowledge that death or grievous bodily harm was its probable consequence. To establish that the accused caused the death of the deceased, the prosecution is required to produce evidence linking the accused with the death of the deceased. This means that there must be evidence of some positive act or negative omission of the accused which caused injury to the deceased and the death of the deceased was the direct result of the injury inflicted by the accused. PER ADZIRA GANA MSHELIA, J.C.A.
CONFESSIONAL STATEMENT: WHETHER AN ACCUSED PERSON CAN BE CONVICTED ON HIS CONFESSIONAL STATEMENT
An accused person can be convicted on his confessional statement alone if same is positive, direct and made voluntarily. A confession in itself is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See Section 28 of the Evidence Act, 2011. A properly admitted extra judicial confession of an accused is a part of the case of the prosecution. See lkemson v State (1989) 3 NWLR (Pt.110) 455. For a confession to form the basis of a conviction, it has to be shown to be free and voluntary, positive and proved to be true. See Joseph Okoro Abasi v The State (1992) 8 NWLR (Pt.260) 383; Jimoh Yesufu v The State (1976) 167 at 173, Paul Onochie & 7 Ors v The Republic (1996) NMLR 307; Musa v The State (2013) 2-3 SC (Pt.11) 75 at 92-94, (2013) 9 NWLR (Pt.1359) 214. The appellant clearly confessed to the crime in Exhibit ‘A’. The confessional statement was adequately tested by the learned trial judge in a trial within trial. There is no appeal against the ruling of the trial court on the trial within trial. Thus, the appellant accepted the decision of the trial court that the confessional statement was freely and voluntarily made by him. See Afolabi v State (2016) 11 NWLR (Pt.1524) 497. PER ADZIRA GANA MSHELIA, J.C.A.
DEFENCE OF SELF-DEFENCE: WHAT A PLEA OF SELF DEFENCE ENTAILS
At pages 36-38 of the record the appellant while testifying in his defence raised the plea of self-defence. By raising the plea of self-defence, it is an admission that he did the act for which he was charged, convicted and sentenced. That it was by self-defence and that it was justified. See Sule v The State (2009) 17 NWLR (Pt.1169) 33 SC (2009) LPELR – 3125 (SC). In other words, appellant admitted killing the deceased. He did not deny the fact that he shot the deceased with his bow and arrow which resulted to his death. PER ADZIRA GANA MSHELIA, J.C.A.
CORROBORATION: WHETHER THE PROSECUTION IS AT LIBERTY TO CALL ANY WITNESS THEY DESIRE
The complaint of the appellant that prosecution deliberately refused to call a vital eye witness is of no moment. The prosecution is at liberty to call the number of witnesses they desire as long as the available witnesses will establish the required ingredients beyond reasonable doubt. In Mohammed v State (2007) 11 NWLR (Pt.1045) 303 at 330 paragraph F, it was held that where an accused person confesses to a crime in the absence of an eye witness of killing, he can be convicted on his confession alone. See Oche v State (2007) 5 NWLR (Pt. 1027) 214. PER ADZIRA GANA MSHELIA, J.C.A.
MEDICAL EVIDENCE: WHETHER MEDICAL EVIDENCE IS REQUIRED IN ALL CASES OF MURDER
The confessional statement showed that appellant shot the arrow on deceased abdomen though the charge used the word chest which resulted to his death. The cause of death is therefore linked to the act of the appellant. It is a fact that one Ali Alhaji Abdullahi died. There is however no medical report to show the cause of death. It is trite that medical evidence is not essential in all cases of murder and the cause of death could be inferred from circumstances. See Mgboko v State (1972) 2 SC 123 and Akpan v State (1972) 4 SC 6. The nature of the weapon used and the fact that deceased died not long after he was shot with the arrow on his abdomen, clearly point to the fact that it was the act of the accused (appellant) that caused the death. There is no doubt from the circumstances of the case, that it was the act of the appellant that caused the death of the deceased. The appellant stated in Exhibit ‘A’ that he was told the person he shot with arrow died. PER ADZIRA GANA MSHELIA, J.C.A.
CONFESSIONAL STATEMENT: WHETHER A VOLUNTARY CONFESSION OF GUILT BY A PRISONER IS SUFFICIENT TO WARRANT CONVICTION WITHOUT CORROBORATIVE EVIDENCE
I have earlier stated in this Judgment that Exhibit ‘A’ has been tested by the lower Court. As stated, a trial within trial was conducted and the Court ruled that same was voluntarily made. Appellant did not challenge the ruling. The learned trial Judge was therefore right to attach weight to Exhibit ‘A’ and thereby convicted the appellant. The voluntary confession of the accused (appellant) himself was unambiguous, unequivocal and the best evidence. The law is settled that a voluntary confession of guilt by a prisoner is sufficient to warrant conviction without corroborative evidence if it is direct, positive, duly made and satisfactorily proved. See Yesufu v The State (1976) 5-6 SC at 172. PER ADZIRA GANA MSHELIA, J.C.A.
DUTY OF THE COURT: DUTY OF COURT TO CONSIDER ALL THE DEFENCES AVAILABLE TO AN ACCUSED PERSON
The complaint of the appellant is that the lower Court failed to consider the defence of self-defence raised by the appellant in his testimony in Court. The lower Court was of the view that the defence of self-defence was only raised during appellant’s testimony in Court as such prosecution did not have the opportunity to adduce evidence to rebut the defence, as such appellant cannot avail himself of such defence. It is now settled law that in a trial for murder, it is the duty of the Court to consider all the defences raised by the evidence whether the person charged specifically put up such defences or not. And no matter how weak or stupid a defence raised by an accused may appear, it must be properly and adequately considered. See Uwaekweghinya v State (2005) 1 NCC 369 @ 381, Ani v The State (2003)11 NWLR (Pt.830) 142; Apishe v The State (1971) 1 ALL NLR 50, Udo v State (2006) 15 NWLR (Pt.1001) 194 and Onyia v The State (2006) 11 NWLR (Pt.991) 267. Going by these authorities, it cannot be said that it was too late for the appellant to raise issue of self-defence in his testimony in Court. Appellant is however, required to lead evidence to show circumstance under which he is claiming self defence to exculpate him from the offence of Culpable Homicide punishable with death. See Suleiman v Kano State (2014) LPELR – 23601 (CA) and Odunlami v Nigeria Army (2013)12 NWLR (Pt.1367) 20. It is true the learned trial Judge did not consider the defence of self-defence raised by the Appellant during his testimony in Court. This Court is in a position to examine the complaint raised by the Appellant regarding his plea of self-defence. The prosecution, it is settled has the burden throughout the case of disproving inter alia the defence of self-defence, otherwise the prosecution would not be said to have proved its case beyond reasonable doubt. See Gabriel v State (1989) 12 SC 129, Ahmed v State (1999) 5 SC (Pt.11) 39, (1999) 7 NWLR (Pt.612) 641. PER ADZIRA GANA MSHELIA, J.C.A.
DEFENCE OF SELF-DEFENCE: CONDITIONS THAT MUST HAVE EXISTED FOR THE TAKING OF LIFE OF A PERSON TO BE JUSTIFIED ON THE PLEA OF SELF-DEFENCE
Four cardinal conditions must have existed before the taking of life of a person is justified on the plea of self-defence: 1. The accused must be free from fault in bringing about the encounter, 2. There must be present an impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an existing necessity. 3. There must be no safe or reasonable mode of escape by retreat 4. There must have been a necessity for taking life. See Joseph Kwaghshir & Anor v State (1995) LPELR – 1726 (SC), Okonji v State (1987) 1 NWLR (Pt.52) 659, (1987) 3 SC 175, Uwagboe v The State (2008) 12 NWLR (Pt.1102) 621 SC, (2008) LPELR – 3444 (SC). In Uwagboe v The State (supra), the Supreme Court held that for the defence of self-defence to avail the appellant, he must establish the following 1. That the nature of the attack by the deceased was such as to cause a reasonable apprehension of death or grievous harm to the accused, 2. and that the accused infact apprehended death or grievous harm. See Ekpenyong v The State (1991) 7 NWLR (Pt. 200) 683 at 707, Stephen v The State (1986) NWLR (Pt. 46) 978, 7988 LPELR – 3777 (SC). PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
ADAMU ALHAJI HASSAN Appellant(s)
AND
THE STATE Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Yobe State High Court of justice presided over by Honourable Justice G.M. Nabaruma (Chief Judge) delivered on 8th day of July, 2016.
The brief facts of the case is that on the 17th of February, 2006 at about 1800hrs, one Alhaji Abdullahi Muhammad of Jamaare Hamlet via Garin Dole Village of Bursari Local Government Area of Yobe State reported at Garin Dole Police Outpost that on the same date at about 0900hrs one Adamu Alhaji Hassan of the same address attacked and shot his son, Ali Alhaji Abdullahi with arrow on his chest as a result he died.
The accused person (now Appellant) was arraigned before the Yobe State High Court sitting at Damaturu for the offence of Culpable Homicide punishable with death under Section 227 of the Penal Code. The accused person pleaded not guilty to the charge. Trial commenced, prosecution called one witness Cpl. Monday Johannah who is an investigating police officer and tendered one Exhibit namely the extra-judicial statement of the accused person as Exhibit ?A’. The accused testified as
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DW1 and closed his case. Both counsel filed written addresses and adopted same. In a considered judgment, the learned trial Judge found the accused person (now Appellant) guilty as charged. He was convicted and sentenced to death.
Dissatisfied with the judgment of the lower Court, the Appellant filed his Notice and Grounds of Appeal dated 29th November, 2016, containing five grounds of Appeal.
In compliance with the Rules of Court, parties exchanged their respective briefs of argument. When the appeal came up for hearing, the Appellant’s brief dated and filed 09-11-2016 settled by S.M. Also, Esq. was adopted by counsel. While the Respondent’s brief dated 15-11-2016 and filed on 07-11-2016 was settled by Usman Ismaila, Esq., and same also adopted by counsel.
The Appellant’s Brief of Argument contained four (4) issues for determination. The issues are:
1) Whether or not having regard to the totality of the evidence adduced at the lower Court, the prosecution has proved its case beyond reasonable doubt. (Distilled from Grounds 1 and 2).
2) Whether or not Exhibit ‘A’ was properly admitted in evidence by the lower Court (Distilled
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from Ground 3).
3) Whether or not the lower Court was right when it attached weight and relied on Exhibit ?A’ without first subjecting it to the six rules prescribed by the Apex Court (Distilled from Ground 4).
4) Whether or not the lower Court was right when it held that the defence of self defence did not avail the appellant (Distilled from Ground 5).
The respondent on its part adopted the issues formulated Appellant in his Brief of Argument.
In determining this appeal I will adopt the issues raised by the appellant. However, issues 2 and, 3 can be subsumed under issue 1 appeal will be considered based on issues 1 and 4.
ISSUE NO. 1
Whether or not having regard to the totality of the evidence adduced at the lower Court the prosecution has proved its case beyond reasonable doubt. Issues 2 and 3 will be considered along with issues one.
In arguing issues 1, 2 & 3, learned counsel for the Appellant submitted that in order to discharge the burden placed on the prosecution in proving the case of Culpable Homicide punishable with death, it has to prove three vital ingredients of the offence as enunciated in the case of
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Muhammed Garba & Ors v The State, (2000) 2 SCNQR Part 11, 402 at 411.
Counsel itemised the ingredients as follows:
1. That the death of a human being has actually taken place
2. That such death has been caused by the accused; and
3. That the act was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act.
Counsel contended that it is a cardinal requirement of our criminal justice system that the prosecution must prove its case beyond reasonable doubt. Reliance placed on Muka v The State (1976) 9-10 SC 305. That prosecution is required to establish every ingredient of the offence to the standard of proof so as to leave no reasonable doubt of the guilt of an accused. That prosecution must link the cause of death to the act of the accused. See R v Oledima (1940) 6 WACA 2O2, Friday Aiguoreghian & Anor v The State (2004) 17 NSCQR 442 @ 475 and Elizabeth Ogundiyan v The State (1991) 4 SCNJ 44 @ 53.
It was further submitted that a case can be proved beyond reasonable doubt by direct oral evidence, through circumstantial evidence, through voluntary confession of the
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accused himself which is unambiguous and unequivocal. Reliance placed on Amusa Opoola Adio & Anor v The State (1986) 4SC 194 @ 219-220.
According to counsel, prosecution called only one witness i.e. PW1 and tendered the extra-judicial statement of the accused through him. That prosecution deliberately refused to call one Balarabe Alhaji Abdullahi who was an eye witness and a very vital witness. Though it is not necessary for the prosecution to call every available witness/evidence to prove its case, it is incumbent on the prosecution to call a particular witness whose evidence is material for the resolution of a vital point in issue. Cited in aid is Archibong v State (2004)1 NWIR (Pt.855) 488 ratio 8. According to counsel in the case at hand, prosecution has not called material witness in proof of its case but called only the investigating police officer who is not an eye witness but only testified as to the activities of his investigation and tendered the extra judicial statement of the accused which is marked as Exhibit ?A’.
?Learned counsel further submitted that appellant denied making the statement voluntary and a trial within trial
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was conducted. That Exhibit ?A? was recorded through an interpreter. Counsel submitted that where an interpreter is used in the recording of the statement of an accused person, such a statement is in law inadmissible unless the person who was used in the interpretation of the statement is called as a witness in the proceedings as well as the person who recorded the same. That failure to call the interpreter is fatal to the prosecution. Reliance placed on R v Zakwakwa (1960) 5 F.S.C. He urged the Court to expunge Exhibit ‘A’ as inadmissible evidence and hold that prosecution has failed to prove its case beyond reasonable doubt.
Under issue 2, learned counsel contended that it is trite law that it is the duty of the prosecution to prove beyond reasonable doubt the voluntariness of an extra-judicial confessional statement credited to an accused person standing trial for the crime confessed. See Adekanbi v A.G. Western Nigeria (1966) 1 ALL NLR 47. That the proof is required when the voluntariness is challenged under the conditions stated in Section 29 of the Evidence Act, 2011 (as amended). That no confession by an accused is admissible in
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evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out to him by a person in authority. See Corporal Jonah Dawa v The State (1980) 8-11 SC 236. That appellant denied committing the alleged offence before the investigating police officer and also testified that he was threatened with death and forced to thumbprint Exhibit ?A’. That Exhibit ?A’ was recorded through interpreter. That these facts have not been discredited by the prosecution during the trial within trial. That the onus is on the prosecution to call evidence to prove that the confessional statement of the Appellant which was allegedly obtained voluntarily has not been discharged beyond reasonable doubt. He still maintained that Exhibit ?A’ should have been expunged by the lower Court.
?In arguing issue 3, learned counsel submitted that it is settled law that if a person makes a free and voluntary confession which is direct, positive, true and unequivocal and made out of consciousness of the necessity to uphold truth.
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Counsel enumerated the test required to establish a confessional statement. The tests are set out in cases of Obue v State (1976) 2 SC 141 and Dawa v The State (1980) 8-11 SC 23. That if the confessional statement passes the test satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. Where the confessional statement fails to pass the test, no conviction can properly be founded on it. See Queen v Obiasa (1962) 1 SC NLR 137. It was further argued that there is no any place throughout the length and breadth of the Judgment of the lower Court where Exhibit ?A’ was subjected to test in order to ascertain veracity or voluntariness in the determination of this case. He similarly urged the Court to allow the appeal as the lower Court wrongly attached weight and relied on Exhibit ‘A’ in convicting the Appellant.
?In response, learned counsel for the Respondent submitted that a case is proved beyond reasonable doubt by direct oral evidence if the testimony of witness who saw and heard have testified. That it can also be proved through circumstantial evidence for it is said that witnesses may lie but
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circumstantial evidence do not, so in that sense, circumstantial evidence affords better proof beyond reasonable doubt. Counsel submitted that the voluntary confession of the accused person himself is unambiguous and unequivocal and the best evidence. Reliance placed on Amusa Opoola Adio & Anor v The State (1986) 4 SC 194 @ 219-220.
Learned counsel submitted that the prosecution called one witness who testified as PW1 and tendered one Exhibit i.e. the confessional statement of the Appellant. It was his contention that the prosecution proved its case beyond reasonable doubt.
Learned counsel further submitted that the law is trite that a confession is by virtue of S.28 of the Evidence Act,2011 (as amended) is an admission made at any time by a person charged with a crime stating or suggesting that he committed that crime. He placed reliance on Hassan v State (2001) 8 MJSC 105 at 108, According to counsel, the law is settled that a voluntary confession of guilt by a prisoner is sufficient to warrant conviction without corroborative evidence if it is direct, positive, duly made and satisfactorily proved. SeeYesufu v The State 1976 5-6 SC at
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172. He contended that a voluntary confession made by an accused person is relevant and admissible against him at the trial. See Omoju v FRN (2008) 11 MJSC 15 at 159. It was further contended that a trial within trial was conducted and the objection to the admissibility of the confessional statement was overruled and the extra-judicial statement was admitted in evidence and marked Exhibit ?A’. That the lower Court relied on Exhibit ‘A’ in convicting the appellant having said that it has no cause to question the credibility of the said Exhibit ‘A’. Counsel maintained that a free and voluntary confession of guilt by a person whether under an examination, that if it is direct and positive and is duly made and satisfactorily, is sufficient to warrant conviction without corroborative evidence as long as the Court is satisfied of the truth of the confession. That it is desirous to have outside the confession some evidence no matter how slight of the circumstances which make it probable that the confession was true. See Uluebeka v The State (2000) 7 NWLR (Pt.665) 404 186- 189. That a conviction founded on a confessional statement without corroborative
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evidence cannot be faulted on this ground.
It was further submitted that the law has been settled in criminal trials, that a trial Court is under a duty to consider all the defences possible or available to an accused person on the facts even though they are improbable or unfounded and whether or not they are specially raised by the accused person. That based on the evidence of the accused person (now appellant) it has not disclosed any defences. He urged the Court to dismiss the appeal.
The law is indeed well settled that to succeed in a charge of murder as the appellant was charged in the present case, the prosecution must prove:
1. that the deceased died
2. that the death of the deceased resulted from the act of the accused.
3. that the act of the accused in causing the death of the deceased was done intentionally with the knowledge that death or grievous bodily harm was its probable consequence.
To establish that the accused caused the death of the deceased, the prosecution is required to produce evidence linking the accused with the death of the deceased. This means that there must be evidence of some positive act or
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negative omission of the accused which caused injury to the deceased and the death of the deceased was the direct result of the injury inflicted by the accused.
There was no eye witness to the incident as none was called by the prosecution. The only witness called by the prosecution is the IPO who testified as PWI. He only received the extra judicial statement of the accused admitted as Exhibit ?A’
The only available evidence linking the accused (appellant) with the alleged offence is the confessional statement. An accused person can be convicted on his confessional statement alone if same is positive, direct and made voluntarily. A confession in itself is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See Section 28 of the Evidence Act, 2011. A properly admitted extra judicial confession of an accused is a part of the case of the prosecution. See lkemson v State (1989) 3 NWLR (Pt.110) 455. For a confession to form the basis of a conviction, it has to be shown to be free and voluntary, positive and proved to be true. See Joseph Okoro Abasi v The State
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(1992) 8 NWLR (Pt.260) 383; Jimoh Yesufu v The State (1976) 167 at 173, Paul Onochie & 7 Ors v The Republic (1996) NMLR 307; Musa v The State (2013) 2-3 SC (Pt.11) 75 at 92-94, (2013) 9 NWLR (Pt.1359) 214.
The appellant clearly confessed to the crime in Exhibit ‘A’. The confessional statement was adequately tested by the learned trial judge in a trial within trial. There is no appeal against the ruling of the trial court on the trial within trial. Thus, the appellant accepted the decision of the trial court that the confessional statement was freely and voluntarily made by him. See Afolabi v State (2016) 11 NWLR (Pt.1524) 497.
In Exhibit ?A’, the appellant narrated what actually transpired, leading to the death of the deceased. He stated thus:
“… During the month of October, 2005 at Garin Alkali market one Ali Alhaji Audu and Bandi Alhaji Umaru all of the same address met me and jointly matchet me on my head. As a result, I sustained injuries on my head. I was taken to General Hospital Gashua treated and discharged after a period of three weeks. My father refused to make it a police case because we are staying in the same
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hamlet. On 16-02-2006 at about 1900hrs after prayer at our mosque, argument ensued between me and the said Ali Alhaji Audu. During the argument, he hit me with a stick on my left hand. But I did not revenge. On Friday being 17-02-2006 at about 0900hrs while we are rearing cows in the bush near our residence out of annoyance of what happened previously, I removed my bow and arrow, I carried from my senior brother’s house shot Ali Alhaii Audu ‘M’ on his abdomen. After shooting him I drove my cows and took to my heels. The incident happened in the presence of Balarabe the senior brother of Ali. Later my senior brother named Mohammadu ‘M’ came and told me that the person I shot with arrow has died.”
At pages 36-38 of the record the appellant while testifying in his defence raised the plea of self-defence. By raising the plea of self-defence, it is an admission that he did the act for which he was charged, convicted and sentenced. That it was by self-defence and that it was justified. See Sule v The State (2009) 17 NWLR (Pt.1169) 33 SC (2009) LPELR – 3125 (SC). In other words, appellant admitted killing the deceased. He did not deny the fact that he shot the
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deceased with his bow and arrow which resulted to his death. The issue of self-defence will be discussed later in this judgment.
The complaint of the appellant that prosecution deliberately refused to call a vital eye witness is of no moment. The prosecution is at liberty to call the number of witnesses they desire as long as the available witnesses will establish the required ingredients beyond reasonable doubt. In Mohammed v State (2007) 11 NWLR (Pt.1045) 303 at 330 paragraph F, it was held that where an accused person confesses to a crime in the absence of an eye witness of killing, he can be convicted on his confession alone. See Oche v State (2007) 5 NWLR (Pt. 1027) 214.
The confessional statement showed that appellant shot the arrow on deceased abdomen though the charge used the word chest which resulted to his death. The cause of death is therefore linked to the act of the appellant. It is a fact that one Ali Alhaji Abdullahi died. There is however no medical report to show the cause of death. It is trite that medical evidence is not essential in all cases of murder and the cause of death could be inferred from circumstances. See Mgboko v
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State (1972) 2 SC 123 and Akpan v State (1972) 4SC 6. The nature of the weapon used and the fact that deceased died not long after he was shot with the arrow on his abdomen, clearly point to the fact that it was the act of the accused (appellant) that caused the death. There is no doubt from the circumstances of the case, that it was the act of the appellant that caused the death of the deceased. The appellant stated in Exhibit ‘A’ that he was told the person he shot with arrow died.
As to whether Exhibit ?A’ was properly admitted or not I will without much ado hold the view that same was properly admitted. Appellant’s contention was that an interpreter was used while the IPO was recording the appellant’s statement, but the said interpreter was not called as a witness which according to him was fatal to the prosecution. That the statement Exhibit ‘A’ is rendered inadmissible. The testimony of PW1 Cpl. Monday Yahaya appearing at page 16 of the record clearly showed that no interpreter was used. PWI (IPO) interpreted the statement from Hausa to English. Exhibit ‘A’ clearly confirms this fact. The IPO signed as the interpreter. It is also recorded
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on Exhibit ?A’ thus “the statement was taken in English language, read over and translated to the Accused/witness in Hausa language in my presence and hearing”. Same signed by PWI (IPO). For avoidance of doubt, I will reproduce part of the testimony of PWI wherein he said:
“…. I was assigned to record the statement of the accused. After reading the word of caution to him in Hausa language and he understood and thumb printed on the statement. He later volunteered and made a statement in Hausa. He understood same and thumb printed. I then countersigned the statement. The accused was then taken before my SPO, DSP Baba Lawan presently on transfer to Port Harcourt. The statement of the accused was read over to the accused in the presence of the SPO.”
Contrary to the contention of Appellant’s counsel, the record did not show that an interpreter was used by PWI when recording the Appellant’s statement Exhibit ?A’. It is for the appellant to prove that an interpreter was used during the time PWI was recording appellant’s statement. In the absence of such evidence, the assertion made by Appellant cannot be sustained.
?
I have earlier
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stated in this Judgment that Exhibit ?A’ has been tested by the lower Court. As stated, a trial within trial was conducted and the Court ruled that same was voluntarily made. Appellant did not challenge the ruling. The learned trial Judge was therefore right to attach weight to Exhibit ?A’ and thereby convicted the appellant. The voluntary confession of the accused (appellant) himself was unambiguous, unequivocal and the best evidence. The law is settled that a voluntary confession of guilt by a prisoner is sufficient to warrant conviction without corroborative evidence if it is direct, positive, duly made and satisfactorily proved. See Yesufu v The State (1976) 5-6 SC at 172.
Issues 1, 2 and 3 are all resolved against the appellant.
ISSUE 4
Learned counsel submitted that the accused has successfully raised the defence of self-defence and that prosecution has failed to disprove it during cross-examination and by way of evidence. According to counsel, the position of the law is that the onus is on the prosecution to disprove an accused person’s plea of self defence and not on the accused person to establish. Reliance placed on
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Amako v The State (1995) 6 NWLR (Pt.399)11 at 33. That in a case of Culpable Homicide such as the case under consideration, the defence of self defence or private defence under Sections 59, 60 and 65 of the Penal Code is an absolute and complete defence. The case of Joseph Kwaghshir & Anor v The State (1995) 3 NWLR (pt. 386) 651 at 669 was cited to show the grounds must co-exist before the accused person would enjoy this defence. Counsel contended that based on the principles stated in Kwaghshir v The State (supra) the accused (appellant) was entitled to rely on the defence of self-defence. Reliance placed on Exhibit ?A’ and testimony of DWI.
It was contended that even if the evidence of self-defence was first introduced by the appellant in his testimony, the prosecution had an ample opportunity to seek the leave of the Court to rebut the evidence of self-defense raised by the Appellant but failed to utilize it. Counsel referred to the modern law on the defence of self-defence as set out by the Supreme Court in the case of John Mgboko v The State (1972) 2 SC 123 at 126. Learned counsel submitted that the accused by what transpired on two
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different occasions where he suffered serious injuries from the same set of people who again approached him while fully armed has reasonable apprehension of death or grievous harm and the accused reasonably believed that the act of killing was necessary for his own protection and not that of an excitable individual killer. That the test is objective and not subjective. It is that of a reasonable man and the act which resulted in killing must be the reaction of a reasonable person placed in similar situation.
?It was submitted that from the contents of Exhibit ‘A’ and the testimony of the accused person as DWI, it is glaringly clear that the accused had reasonable apprehension of death or grievous harm and he believed his acts was necessary for his protection. Counsel argued that a successful defence of self-defence in Section 65 of the Penal Code is available to the accused to exclude criminal responsibility where the nature of the assault is such as to cause reasonable apprehension of death or grievous harm. Such a person is entitled to defend himself from such assault even though he causes death in so doing. That from the nature of the attack on him
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appellant was in danger and it was necessary to preserve his life to kill. He urged the Court to hold that the Appellant raised the defence of self-defence and is entitled to benefit from it.
Learned counsel for the respondent had responded to this issue briefly under Respondent’s issue No. 2.
The complaint of the appellant is that the lower Court failed to consider the defence of self-defence raised by the appellant in his testimony in Court. The lower Court was of the view that the defence of self-defence was only raised during appellant’s testimony in Court as such prosecution did not have the opportunity to adduce evidence to rebut the defence, as such appellant cannot avail himself of such defence. It is now settled law that in a trial for murder, it is the duty of the Court to consider all the defences raised by the evidence whether the person charged specifically put up such defences or not. And no matter how weak or stupid a defence raised by an accused may appear, it must be properly and adequately considered. See Uwaekweghinya v State (2005) 1 NCC 369 @ 381, Ani v The State (2003)11 NWLR (Pt.830) 142; Apishe v The State (1971) 1 ALL
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NLR 50, Udo v State (2006) 15 NWLR (Pt.1001) 194 and Onyia v The State (2006) 11 NWLR (Pt.991) 267. Going by these authorities, it cannot be said that it was too late for the appellant to raise issue of self-defence in his testimony in Court. Appellant is however, required to lead evidence to show circumstance under which he is claiming self defence to exculpate him from the offence of Culpable Homicide punishable with death. See Suleiman v Kano State (2014) LPELR ? 23601(CA) and Odunlami v Nigeria Army (2013)12 NWLR (Pt.1367) 20. It is true the learned trial Judge did not consider the defence of self-defence raised by the Appellant during his testimony in Court. This Court is in a position to examine the complaint raised by the Appellant regarding his plea of self-defence. The prosecution, it is settled has the burden throughout the case of disproving inter alia the defence of self-defence, otherwise the prosecution would not be said to have proved its case beyond reasonable doubt. See Gabriel v State (1989) 12 SC 129, Ahmed v State (1999) 5 SC (Pt.11) 39, (1999) 7 NWLR (Pt.612) 641.
Four cardinal conditions must have existed before the taking of
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life of a person is justified on the plea of self-defence:
1. The accused must be free from fault in bringing about the encounter,
2. There must be present an impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an existing necessity.
3. There must be no safe or reasonable mode of escape by retreat
4. There must have been a necessity for taking life.
See Joseph Kwaghshir & Anor v State (1995) LPELR – 1726 (SC), Okonji v State (1987) 1 NWLR (Pt.52) 659, (1987) 3 SC 175, Uwagboe v The State (2008) 12 NWLR (Pt.1102) 621 SC, (2008) LPELR ? 3444 (SC).
In Uwagboe v The State (supra), the Supreme Court held that for the defence of self-defence to avail the appellant, he must establish the following
1. That the nature of the attack by the deceased was such as to cause a reasonable apprehension of death or grievous harm to the accused,
2. and that the accused infact apprehended death or grievous harm.
See Ekpenyong v The State (1991) 7 NWLR (Pt. 200) 683 at 707, Stephen v The State (1986) NWLR (Pt. 46) 978, 7988 LPELR ? 3777 (SC).
The question now
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is has the appellant proved that he was a victim of an unprovoked assault causing him reasonable apprehension of death, or grievous harm. In Exhibit ?A’, appellant stated in his statement to the Police that he shot the deceased with an arrow on his abdomen out of annoyance, because previously the deceased and two others beat him. He was hospitalized for three weeks as a result of the beating. Even if appellant is to be believed that he was previously beaten by the deceased and one other, on the date of the incident, appellant did not show that his life was in danger when he shot the deceased. Appellant’s act was not based on self-defence but revenge. In his testimony in Court, appellant changed his story by adding this version:
“.. the following day (sic) went for animal rearing and I saw Ali Abdullahi and Balarabe approaching me while Ali Abdullahi was holding a bow and arrow ready to shoot while Balarabe wielded the matchet and I ran from the place and went in between my cattle. I realized that they intended to attack and I brought out my bow and arrow and shot at them. I then left with my cattle to continue rearing…”
?
This piece of
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evidence in my humble view was an afterthought. No weight can be attached to his evidence. The defence of self-defence is not available to the appellant. As I earlier said all that appellant did was to avenge the previous attack and not that his life was in danger or that there was reasonable apprehension of grievous bodily harm. By shooting the deceased with an arrow on the chest or abdomen as described in Exhibit ‘A’, clearly showed that appellant knew that death would be the probable consequence of his act.
It is my humble view that prosecution had proved its case beyond reasonable doubt. Issue 4 is similarly resolved against the appellant.
In the final analysis, I hold that the appeal is devoid of merit and same is dismissed. Appeal dismissed. The conviction and sentence passed on the appellant by the High Court of Justice Damaturu, Yobe State in charge No. YBS/DT/HC/CC/007 /2006 on 8th July, 2016 is hereby affirmed.
ADAMU JAURO, J.C.A.: I had the opportunity of reading in draft, the judgment just delivered by my learned brother, ADZIRA GANA MSHELIA, JCA.
?By the confessional statement of the accused
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Exhibit ‘A’, I am convinced that the prosecution had duly proved the offence the appellant was charged for beyond reasonable doubt.
I am in entire agreement with the reasoning and conclusion contained in the judgment to the effect that the appeal is lacking in merit. I adopt the said judgment as mine in dismissing the appeal. The judgment and conviction made by the trial Court is hereby affirmed.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: Having had the privilege and opportunity to read in draft, the lead Judgment delivered by my learned brother, MSHELIA ADZIRA GANA, JCA, I agree entirely with the reasoning and decision of his lordship which has been clearly expressed and in a lucid manner. I have nothing else to add. In consequence, I abide by the orders made therein.
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Appearances:
S.M. AlsoFor Appellant(s)
Usman IsmailaFor Respondent(s)
Appearances
S.M. AlsoFor Appellant
AND
Usman IsmailaFor Respondent
