ADAMU SHEIDU v. THE STATE
(2010)LCN/4014(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of October, 2010
CA/A/308/C/09
RATIO
CONSEQUENCE OF THE FAILURE OF THE RESPONDENT’S BRIEF TO ANSWER OR RESPOND TO ALL THE LEGAL POINTS CANVASSED IN THE ISSUES SUBMITTED FOR DETERMINATION IN THE APPELLANT’S BRIEF OF ARGUMENT
In the absence of the Respondent’s brief to answer or respondent to all the legal points canvassed in the issues submitted for determination in the Appellant’s brief of argument, the appeal remains or is left as an uncontested one. The consequence of that position is that the Respondent is deemed to have conceded to the appeal. See:- JOHN HOLT VENTURES v. OPUTA (1996) 9 NWLR (470) 10; SALAU v. PARA-KOYI (2001) 13 NWLR (731) 602; AKPAN v. THE STATE (1992) 6 NWLR (248) 439. However even though the Respondent is in law deemed to have conceded to the appeal, that does not translate to an automatic success of the appeal, because the Court still owes the duty to consider and then determine whether the appeal is sustainable. AKPAN v. STATE (supra); ECHERE v. EZIRIKE (200) ALL FWLR (323) 1597 at 1608; (2006) 12 NWLR (994) 386. PER MOHAMMED LAWAL GARBA, J.C.A.
WHAT THE PROSECUTION HAS TO PROVE IN ORDER TO SECURE A CONVICTION FOR THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH
…for an offence of Culpable homicide punishable with death under Section 221(b) of the Penal Code, with which the Appellant was charged and tried by the Lower Court, the Supreme Court in the case of STATE v. DANJUMA (1997) 5 NWLR (506) 512 at 533 had held that:- “Under Section 221(b) of the Penal Code, the Prosecution has to prove the following in order to secure a conviction for the offence of culpable homicide punishable with death:- (a) that the death of a human being actually occurred, (b) that it was caused by the act or acts of the accused, (c) that the act/s were done with the intention of causing death; or (d) that the accused knew that death was the probable consequence of his act/s.” At page 544 of the report, the Supreme Court had stated that all the ingredients listed above must be proved and that once the prosecution fails to prove any one of them, the accused should be given the benefit of doubt. See also: AKCNFE v. STATE (1988) 3 NWLR (85) 729 at 744-5; JOSHUA v. STATE (2000) 5 NWLR (658) 591 at 621; OCHEMAJE v. STATE (2008) 6 SCNJ 143 at PER MOHAMMED LAWAL GARBA, J.C.A.
CONFESSIONAL STATEMENT : WHAT IS THE TEST FOR DETERMINING THE VERACITY OF A CONFESSIONAL STATEMENT
The law is that a voluntary and therefore admissible confession is the best evidence that proves the commission of an offence and the person responsible for it if the Court is satisfied of its veracity. The test for determining the veracity of a confessional statement is to seek any other evidence be it slight of circumstances which make it probable that it is true. See: AKPAN v. STATE (1992) 6 NWLR (248) 439 at 460; IKPASA v. ATTORNEY-GENERAL OF BENDEL STATE (1981) 9 SC 1 PER MOHAMMED LAWAL GARBA, J.C.A.
FACTORS THAT WILL BE TAKEN INTO CONSIDERATION IN THE DETERMINING WHETHER OR NOT DEATH WAS THE PROBABLE CONSEQUENCE OF THE ACTS OF THE ACCUSED
Since the Appellant was said to have the knowledge that death was the probable consequence of his act, whether or not death was the probable consequence of the acts of the Appellant in the case is an issue of fact to be determined on the peculiar circumstances of the case. Some of the relevant factors or facts to be taken into consideration in the determination of the issue include; (a) State of health of the accused and the deceased at the material time. (b) The age and physical condition of the accused and the deceased at the material time. (c) The type and/or nature of the weapon used by the accused person. (d) The nature of the injury inflicted by the accused person. (e) The part of the body of the deceased struck by the accused person. (f) The time of death of the deceased, e.g. whether instantly or at a later time, and length of such time. These factors are not exhaustive and each case would depend on its peculiarities of the facts and evidence adduced at the trial. See. GWANDU v. GWANDU W.A. (1962) 2 SCNLR 293: ADAMU v. KANO N.A. (1956) SCNLR 65; BAKURI v. STATE (1965) NMLR 163. PER MOHAMMED LAWAL GARBA, J.C.A.
STATUTORY PROVISION: PROVISION OF THE STATUTE ON THE DEFENCE OF SELF DEFENCE
Section 222(2) of the Penal Code makes provisions for the defence of self defence. It provides thus:- “(2) Culpable homicide is not punishable with death if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the powers given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm that is necessary for the purpose of such defence” In the case of LAOYE v. STATE (1985) 2 NWLR (10) 832 the Supreme Court had held that:- “The law would excuse a killing if the killer had reasonable grounds for believing that his own life was in danger and that he had to kill in order to preserve it. The belief of the accused in such a case would be tested on objective grounds and several factors would necessarily arise in determining the objective belief, for example the quality of force used on the deceased must be the same as that with which, the accused defends himself.” See also ODU v. STATE (2001) 10 NWLR (722) 668; NNAMAH v. STATE (2005) 2 NWLR (929) 147. PER MOHAMMED LAWAL GARBA, J.C.A.
WHAT AN ACCUSED PERSON CHARGED WITH THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH UNDER THE PENAL CODE MUST PROVE FOR A SUCCESSFUL PLEA OF THE DEFENCE OF SELF DEFENCE
So essentially 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: – (a) That his life was actually threatened or endangered by the acts of the deceased, (b) That the only option that was opened to him to save his own life was to use force which was necessary on the deceased at the material time. (c) That amount of force used on the deceased was proportionate to the threat or danger posed by the acts of the deceased. (d) 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. (e) Show that he did not want to fight and that he was at the material time prepared to withdraw from the danger posed to his life by the deceased. Factors relevant for consideration in the defence are not closed and would or may vary from case to case depending on the facts, circumstances and the evidence placed before the trial Court. See: STEVEN v. STATE (1986) 5 NWLR (46) 979 at 987, EHIBOGWU v. STATE (2005) PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
ADAMU SHEIDU Appellant(s)
AND
THE STATE Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant was charged with a one (1) count charge of culpable homicide punishable with death in that he was said to have caused the death of one Abdul Angulu by stabbing him with a knife in the chest with the knowledge that death would be the probable consequence of such an act, under Section 221 of the Penal Code. At the end of the trial before the Kogi State High Court sitting at Abegukolo, (hereafter to be called the Lower Court), the Appellant was on 22/5/09 convicted of the offence of culpable homicide not punishable with death under Section 224 of the Penal Code and sentenced to ten (10) years imprisonment.
Being dissatisfied with his conviction, a Notice of Appeal was filed for the Appellant against the decision. The undated Notice of Appeal which appears at pages 121 – 122 of the printed Record of appeal contains two (2) grounds of appeal; ground 1 an error of law and ground 2, the omnibus ground. Without the particulars set out under ground 1, the grounds of appeal are:-
“1. The learned trial Judge erred in law when whilst considering the various defences put forward and available to the Appellant held that the Defence of self-defence is not available to the Appellant.
2. The learned trial Judge’s entire decision is unreasonable, Unwarranted and cannot be supported having regard to the Evidence before the Honourable learned trial Judge.”
In compliance with the Rules of practice in this Court, an Appellant’s brief of argument was filed on the 1/12/09 in support of the appeal. There is no record that the Respondent had filed a brief of argument in the appeal. However in paragraph 4 of the affidavit in support of an application filed on 1/3/10 by the learned Appellant’s Counsel for the appeal to be heard on the Appellant’s brief of argument alone, it was averred that the Respondent was served with the Appellant’s brief on the 25/1/10. The Appellant’s application for the appeal to be heard on his brief alone was granted on 29/6/10 and the appeal accordingly set down for hearing on the 21/19/10.
On the 21/9/10 when the appeal came up for oral hearing in Court, A.R. Fatunde appeared for the Appellant. The affidavit of service of the Hearing Notice of the appeal on the Respondent indicated that the Hearing Notice was served on the Respondent through the Ministry of Justice, Kogi State.
The Respondent was not represented at the hearing and there was no communication from the Ministry of Justice to excuse the absence. For that reason, the Court proceeded with the hearing of the appeal pursuant to the combined provisions of Order 17, Rules 9(4) and 10 of the Court of Appeal Rules, 2007.
The learned Counsel for the Appellant then adopted the Appellant/s brief of argument as his submissions in support of the appeal and urged us to allow it and set aside the conviction of the Appellant. In the absence of the Respondent’s brief to answer or respondent to all the legal points canvassed in the issues submitted for determination in the Appellant’s brief of argument, the appeal remains or is left as an uncontested one. The consequence of that position is that the Respondent is deemed to have conceded to the appeal. See:-
JOHN HOLT VENTURES v. OPUTA (1996) 9 NWLR (470) 10; SALAU v. PARA-KOYI (2001) 13 NWLR (731) 602; AKPAN v. THE STATE (1992) 6 NWLR (248) 439. However even though the Respondent is in law deemed to have conceded to the appeal, that does not translate to an automatic success of the appeal, because the Court still owes the duty to consider and then determine whether the appeal is sustainable.
AKPAN v. STATE (supra); ECHERE v. EZIRIKE (200) ALL FWLR (323) 1597 at 1608; (2006) 12 NWLR (994) 386.
In the above premises, I intend to consider the submissions of the learned Counsel for the Appellant and then determine if the appeal is sustainable in law.
From the two (2) grounds of appeal set out above, the learned Counsel had distilled the following two (2) issues for determination by this Court:-
“1. Whether considering the facts and circumstances of this matter the accused was not entitled to be discharged and acquitted on the one count charge based on the defence of self-defence?
2. Whether having regard to the state of the evidence before the honourable learned trial Judge, the accused was not entitled to be discharged and acquitted on the one court charge?”
I would deal with the issues as formulated by the learned Counsel.
The submissions on Issue 1 started with a restatement of the Constitutional provisions that a person accused of the commission of a criminal offence is presumed innocent until proved otherwise. Similarly that in law, the proof is one beyond reasonable doubt and always on the prosecution throughout a trial. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, Section 137(1) of the Evidence Act as well as the cases of: BOZIN v. STATE (1985) 2 NWLR (8) 467; ADISA v. STATE (1991) 1 NWLR (168) 493 at 505 and AJIBOYE V. STATE (1994) 8 NWLR (364) 593 at 603-4 were referred on the submissions. It was submitted that the law on self defence is settled by the provisions of Sections 65, 66 and 222(2) of the Penal Code and Section 33(2) of the 1999 Constitution and that the trial Court was required to consider all defences put forward by an accused as well as others that may be available to him. The statement of AKINTAN, J.S.C. in UWAGBOE v. STATE 12 NWLR (1102) 665 was cited as authority on the point. The learned Counsel then copiously set out the evidence of Defence witnesses No. 2 (DW2) and No. 3 (DW3) as well as a portion of the evidence of Prosecution Witness No. 4 on which he submitted that the evidence shows a very tight and volatile scenario of what transpired on 15th July 2007 which fits the nature and character of where the defence of self defence is applicable even if the Appellant did not raise it. He said that self defence has no limit as sit depends on the facts of each case and that the evidence of self defence adduced was not challenged or contradicted by the PWs in the Appellant’s case and should have assisted the Lower Court in the discharge and acquittal of the Appellant.
According to him, the evidence shows that there were bodily harms and impending perils to live with two persons lying unconscious on the floor after the attack by the deceased, PW1 and their group and Appellant’s only means of escape was to strike the rampaging deceased with a stick in order to escape and make a report to the Police. Further, that the Lower Court failed and refused to utilize the evidence to discharge and acquit the Appellant who has thereby suffered a miscarriage of justice. The cases of: MAIYAKI v. STATE (2008) 3 NWLR (1075) 438; UWAGBOE v. STATE (supra) and OMOREGIE v. STATE (2008) 18 NWLR (1119) 467 were relied on for the ingredients and effect of the defence of self-defence. It was also argued that the Lower Court’s decision that the issue of self defence only came up for the first time during trial and so an afterthought, was perverse and should be set aside. It was contended that the Appellant had made out the defence of self defence and is entitled to it because:-
(1) The prosecution which owes the duty of proof did not show that the defence is not available to the Appellant. The case of OMOREGIE v. STATE (supra) was relied on, or
(2) The Lower Court was hasty to judgment, and shored up the prosecution’s case to cure the lacuna therein in order to convict the Appellant when it is supposed to be an impartial arbiter. The case of NDIDI v. STATE (2007) 13 NWLR (1052) 639 at 657-9 was cited and it was further submitted that the Lower Court speculated and did not rely on the facts and evidence to arrive at its decision contrary to law.
UWAGBOE v. STATE, ADISA v. STATE, (both supra) and TIJJANI v. COP (1994) 3 NWLR (335) 696 at 703 were referred on the point.
(3) There is no law which says that a defence put up at the trial is an afterthought and will not avail an accused. That an accused person is not precluded from raising a defence at his trial since he could file additional witness depositions or subpoened them relying on OLANIYAN v. OYEWOLE (2008) 5 NWLR (1079) 114 at 138.
(4) That it was curious for the Lower Court to have made findings at 114-5 of the record of appeal that the Appellant was provoked when the deceased and other persons attacked the Appellant’s mother and sister as a result of which they became unconscious, but ruled that he was not entitled to the defence of self defence. Learned Counsel said the findings on provocation fall squarely on the requirements of self defence and are applicable to it. We were finally urged to hold that the Lower Court was inconsistent in its findings on self defence and that the Appellant has made a case for this Court’s interference with the decision of the Lower Court to resolve the issue in Appellant’s favour and allow the appeal.
The submissions by the learned Counsel on Issue 2 are largely similar to those on Issue I reviewed above particularly as they relate to presumption of innocence, standard of and burden of proof required by law which require that the prosecution must prove all the ingredients or elements of the offence charged. He submitted further that the charge against the Appellant was that he stabbed the deceased with a knife on the chest, but that the said knife, which is essential to prove the charge, was not tendered in evidence at the trial. That what was in evidence of the prosecution witnesses and tendered at the trial was a cutlass which the learned Counsel insisted is not the same thing as the knife said to have been used in the charge. He maintained that the knife being an essential ingredient of the offence and no other weapon must be tendered in evidence. The evidence of prosecution witness No. 4, (PW4) at pages 60-1 and the list of Exhibits at page 124 of the Record of appeal were set out and referred to by him along with the definitions of a cutlass and knife in the Oxford Advanced Learners Dictionary, 6th Edition. It was contended that since the knife alleged to have been used by the Appellant in the commission of the offence was not put in evidence, the prosecution had failed to prove the charge beyond reasonable doubt and that the failure had created a doubt in their case which should be resolved in Appellant’s favour. According to learned Counsel, that the knife being a vital piece of evidence in the case failure to tender it means that if it was tendered it would have been against the prosecution relying on Section 149(d) of the Evidence Act that the prosecution suppressed evidence in the case.
It was his argument that the Lower Court did not confine itself to the evidence adduced in convicting the Appellant for the charge since the knife was not tendered in evidence and so its decision was perverse. The cases of:
TSAKU v. STATE (1986) 1 NWLR (17) 520 and CLERK v. STATE (1980 4 NWLR (35) 386 were cited on the point as well as several other cases on why this Court should act under Section 15 of the Court of Appeal Act, 2004, to resolve the issue in Appellant’s favour.
Among such cases are:
MAJEKODUNMI v. N.A. (2002) 3 WRN 142 at 147; IKEMSON v. STATE (1989) 3 NWLR (110) 459 at 474 and EMINE v. STATE (1991) 7 NWLR (204) 483 at 494.
In conclusion, the Court was urged by the learned Counsel to resolve the Issue in Appellant’s favour, allow the appeal, set aside the decision of the Lower Court and discharge and acquit the Appellant.
It may have been observed that I did not give a resume of the facts from which the charge the Appellant was arraigned before and eventually convicted by the Lower Court arose, as is usual at the beginning of this judgment. I deliberately left the facts for this stage of the judgment in order for them to be fresh for a full appreciation of the incident which resulted in the charge against the Appellant.
As can be gathered from the Record of the appeal, particularly the evidence of the witnesses who testified at the trial, on Sunday the 15th day of July 2007 a lingering land boundary dispute between the mother of the Appellant and mother of the deceased re-occurred The Village/Ward head of the area, called the “Gago” was invited by the Appellant’s mother to come and once more demarcate the correct boundary between the two (2) neighbours. In the process of the demarcation, altercations erupted between members of the two disputing parties present at the time which resulted into a fight in the course of which the deceased sustained an injury on the chest. He died at the scene apparently from that injury. The Appellant who was at the scene at the material time was later arrested by the Police and accused of causing the death of the deceased and eventually arraigned before the Lower Court on the following One (1) Count Charge:-
“That you, Adamu Sheidu on or about the 1st day of August, 2007 at Abejukolo in Omala Local Government Area of Kogi State within the Kogi Judicial Division did commit culpable homicide punishable with death in that you caused the death of Abdul Angulu by doing an act of stabbing him with a knife in his chest with the knowledge that his death would be the probable consequence of your act you thereby committed an offence punishable under Section 221 of the Penal Code.”
It may be observed that while the evidence of all the witnesses including the Appellant show positively that the incident which led to the charge against the Appellant had happened on the 15th of July 2007, the charge above which appears at page 3 of the pointed record of appeal, reads the 15th of August, 2007. The mistake in stating the date of the incident in the charge did not in any material way affect the validity of the charge since there is no dispute or even any doubt about the actual date on which the incident occurred from the first hand account of all the people present at the material time and who testified as witnesses at the trial, including the Appellant himself, That mistake is in the circumstances, immaterial and inconsequential in the trial and eventual decision of the Lower Court.
Before a look at the evidence adduced by the State in proof of the charge, it is expedient to state that the learned Appellant’s Counsel is right on the general position or principles of law applicable in criminal trials in Nigeria. Among them are that a person charged with the commission of an offence before a Court of law is presumed innocent until proved guilty, that the standard of proof required is that beyond reasonable doubt and that every or all the ingredients constituting the offence must be proved by credible and sufficient evidence which eliminates reasonable doubt on the commission of the offence and who was responsible for it. These and other general principles of law are elementary now in our judicial practice and procedure such that they have become common knowledge.
For instance for an offence of Culpable homicide punishable with death under Section 221(b) of the Penal Code, with which the Appellant was charged and tried by the Lower Court, the Supreme Court in the case of
STATE v. DANJUMA (1997) 5 NWLR (506) 512 at 533 had held that:-
“Under Section 221(b) of the Penal Code, the Prosecution has to prove the following in order to secure a conviction for the offence of culpable homicide punishable with death:-
(a) that the death of a human being actually occurred,
(b) that it was caused by the act or acts of the accused,
(c) that the act/s were done with the intention of causing death; or
(d) that the accused knew that death was the probable consequence of his act/s.”
At page 544 of the report, the Supreme Court had stated that all the ingredients listed above must be proved and that once the prosecution fails to prove any one of them, the accused should be given the benefit of doubt. See also: AKCNFE v. STATE (1988) 3 NWLR (85) 729 at 744-5; JOSHUA v. STATE (2000) 5 NWLR (658) 591 at 621; OCHEMAJE v. STATE (2008) 6 SCNJ 143 at
I now turn to the evidence adduced by the prosecution at the trial before the Lower Court in order to see if the charge against the Appellant was proved as required by law. It would be remembered that the prosecution bears the burden of proof of the offence charged throughout the trial and until it discharges that burden beyond reasonable doubt to the satisfaction of the trial Court, the need to call on the accused person to enter or open his defence would not arise since in law there would be no offence to be defended.
ADENIJI v. STATE (2000) 2 NWLR (645) 354: ONYEACHIMBA v. STATE (1998) 8 NWLR (563) 587.
The prosecution called four witnesses at the trial three (3) of whom were policemen who were involved in the investigation of the alleged offence and through whom the statements of the Appellant and the two exhibits recovered at the scene of the offence were put in evidence.
The 1st prosecution witness (PW1) was one Awah Haruna, the mother of the deceased (Abdul Angulu). Her evidence was to the effect that on the date of the incident, there was a quarrel between her and her children on the one part and the mother of the Appellant on the other over a land boundary dispute. That her late husband Haruna gave part of his land to the grand father of the Appellant called Shuaibu on which he built a house for his son one Ademu, the Appellant’s father. That there was a tree at the boundary which was removed because the Appellant’s mother had complained that it was growing over her house. According to her, the boundary dispute arose after the death of Ademu and that the Appellant’s mother; Ijagua invited the Gago in charge of the area, to plant another tree to mark the boundary but in the course of doing so, the Appellant objected and prevented the Gago, Shuaibu Abalaka, from planting the tree Her husband then reminded the Appellant that it was he who gave the land on which Appellant’s house was built and on hearing that the Appellant hit her husband on the face as a result of which he fell down. That when her husband fell down, she began to cry and called her children and the Appellant then stabbed the deceased on the chest and ran away to the police station where he reported the incident. She said that the corpse of the deceased was later taken away to the Hospital where he was confirmed dead and she identified the body to the Doctor for examination.
Under cross examination, the witness said the Gago was the only one present apart from members of the disputing families and that he was still at their village, Abejukolo. She denied that her husband was paralysed and could not come out of his house before the date of the incident or that the deceased had hit the sister and mother of the Appellant with a stick and that they were hospitalized following injuries inflicted on them by the deceased at the scene. Further, that the deceased did not fight the Appellant or that he was a sickler, but that he was in the house and only rushed out when she cried for help following the Appellant beating of her husband. The witness maintained that the deceased died following the injury inflicted on him by the Appellant and not a natural death. She denied knowledge that the Appellant’s house and family property were burnt following the incident.
Police Constable No. 335614, Akor Aliu was prosecution witness 2 (PW2). He was an investigator at the Divisional Crime Branch of the Abejukolo Police Station to whom the Appellant reported that his mother, was seriously injured by the deceased’s family on the 15th day of July, 2007. Moments after the Appellant’s report to PW2, PW1 reported that the Appellant had killed the deceased and so PW2 promptly arrested the Appellant. He later visited the scene of the incident where he saw the dead body of the deceased which was identified by PW1 as well as a cutlass and stick beside it. The witness took the body for post mortem examination to General Hospital Abejukolo where it was confirmed dead. PW1 identified the body to the doctor for the post mortem examination a report of which was collected by the witness, identified by him in Court and admitted in evidence as Exhibit 1. The witness also recorded statements from the complainant and witnesses and registered the cutlass and stick recovered at the scene, as Exhibits after which he transferred the case along with the Appellant and Exhibits to the State C.I.D. Lokoja. Police Inspector Iloni took over the case from PW2 at the State C.I.D. The Appellant’s statement recorded by PW2 was admitted in evidence as Exhibit P2.
Under cross examination the witness maintained that he did not identify the body of deceased to the doctor, but PW1 did and that he recorded the statement of the Appellant based on the answers he gave to the questions asked by him. He had seen the wound on the chest of the deceased but did not tell the doctor that it was caused by a matchet. That there was no report to him that Appellant’s sister was injured during the incident.
Witness No. 3 (PW3) was ASP Ohoonu Idowu; the Officer in charge of Homicide cases at the State C.I.D. who said he was conversant with the facts of the case. That he was present when the Appellant was cautioned by the investigating police officer (IPO) Inspector Victor Ilori who thereafter recorded statement volunteered by the Appellant. Later the IPO (who was at the time of trial on foreign special duties) took the Appellant before the witness and the statement which was confessional, was read over to the Appellant who confirmed that it was voluntarily made by him without threat, beating or inducement and that it was correct. The witness then endorsed the statement which he later identified and was admitted as Exhibit P3 in evidence. The witness said under cross examination that the contents of Exhibit P3 are what the Appellant had told the Assistant Commissioner of Police in charge of State C.I.D. in an earlier interview when the case was transferred from Abejukolo. That the Appellant had in his statement said his mother and sister fainted during the incident when hit with a stick but that they did not honour the police’s invitation to the C.I.D. and the Appellant gave his statement in English. He was not aware that the Appellant’s house and family property were burnt and did not see the corpse of the deceased.
The last witness for the Prosecution was PW4, through whom the cutlass and stick recovered at the scene were admitted in evidence as Exhibits 4 and 5 respectively.
Under cross examination, the witness said the Exhibits 4 and 5 were recovered at the scene of alleged offence and that Exhibit P4 was not given to him by a police informant. He was present when the Exhibit P3 was recorded at the State C.I.D. where he was serving at the material time. That the Appellant’s statement (Exhibit P3) was from answers to the questions asked by Inspector Ilori. The Exhibit 2 which was Appellant’s statement at Abejukolo Police Station is to the effect that on the date of the incident his mother and sister had misunderstanding with the deceased’s family over a land boundary. That the Appellant called the Gago of the area on whose instruction he got sticks to be used to demarcate the boundary and that while he was digging a hole to do so, the deceased’s family disputed the position shown by the Gago and so started abusing his mother. The Appellant’s sister abused the deceased’s family back and then the deceased picked a stick and hit the Appellant’s sister on the face as a result of which she fainted. That the deceased also hit the Appellant’s mother with a stick and because he could not bear the deceased’s beating of his mother and sister, he hit the deceased with a stick and he died. That he the Appellant was the person that killed the deceased with a stick.
Exhibit P3 was the Appellant’s statement at the State C.I.D. Lokoja which is substantially the same with Exhibit P2 except that in it, the Appellant said he used a cutlass he was holding to matchet the deceased on his chest as a result of which he fell down and fainted. The deceased was later rushed to the hospital where he died. Also that those who participated in the attack on his family were Suleiman Angulu, the deceased and PW1 but that it was Suleiman Angulu who hit his mother and not as in Exhibit P2. The Appellant said in Exhibit P3 that he matcheted the deceased out of provocation because his mother and sister had fainted from the attack by the deceased and Suleiman Angulu.
Even though it appears from the grounds of appeal and the issues formulated by the learned Counsel for determination, the Appellant is not complaining that the evidence summarized above did not prove any of the ingredients of the offence with which he was charged as set in the case of
STATE v. DANJUMA (supra), as can clearly be seen, the primary grievance of the Appellant was that the Lower Court decided that the defence of self defence was not available and did not avail him in the case and that a cutlass was tendered in evidence instead of a knife mentioned in the charge. All the same, the unchallenged evidence of PW1, PW2, the Exhibit 1, the post mortem report as well as Exhibits 2 and 3, have established beyond any doubt that Abdul Angulu, the son of PW1 had died. The death has featured throughout the trial as an indisputable fact which has proved beyond reasonable doubt that the death of a human being has occurred. The Lower Court was in the circumstances right when it held in its judgment, that the first ingredient of the defence with which the Appellant was charged had been proved as required by law.
Similarly, the evidence of prosecution witnesses and Exhibits 2 and 3 which were statements of the Appellant at Abejukolo Police Station and the State C.I.D., Lokoja respectively on what happened on the date of the incident, leaves no room for any reasonable doubt that it was the act or acts of the Appellant to wit hitting, sticking or stabbing the deceased with either a knife, cutlass or stick, that caused the injury on the chest which eventually resulted in the death of the deceased. In other words, the evidence which was not challenged and confessional has proved that it was the act/acts of the Appellant that caused the death of the deceased, beyond reasonable doubt. I would like to observe here that there is no appeal in respect of the admissibility of the Exhibits 2 and 3 which are clearly confessional. As a result, the said Exhibits constitute cogent evidence that carries weight and value in the determination of this appeal.
The law is that a voluntary and therefore admissible confession is the best evidence that proves the commission of an offence and the person responsible for it if the Court is satisfied of its veracity. The test for determining the veracity of a confessional statement is to seek any other evidence be it slight of circumstances which make it probable that it is true. See:
AKPAN v. STATE (1992) 6 NWLR (248) 439 at 460; IKPASA v. ATTORNEY-GENERAL OF BENDEL STATE (1981) 9 SC 1, The evidence of PW1, and PW2, and the oral testimony of the Appellant at the trial clearly show that statements in Exhibits 2 and 3 are true. Once again, the Lower Court was right when it held that the 2nd ingredient of the offence with which the Appellant was charged was proved beyond reasonable doubt.
Since the Appellant was said to have the knowledge that death was the probable consequence of his act, whether or not death was the probable consequence of the acts of the Appellant in the case is an issue of fact to be determined on the peculiar circumstances of the case. Some of the relevant factors or facts to be taken into consideration in the determination of the issue include;-
(a) State of health of the accused and the deceased at the material time.
(b) The age and physical condition of the accused and the deceased at the material time.
(c) The type and/or nature of the weapon used by the accused person.
(d) The nature of the injury inflicted by the accused person.
(e) The part of the body of the deceased struck by the accused person.
(f) The time of death of the deceased, e.g. whether instantly or at a later time, and length of such time.
These factors are not exhaustive and each case would depend on its peculiarities of the facts and evidence adduced at the trial. See. GWANDU v. GWANDU W.A. (1962) 2 SCNLR 293: ADAMU v. KANO N.A. (1956) SCNLR 65; BAKURI v. STATE (1965) NMLR 163.
The evidence of the facts adduced before the Lower court in the trial of the Appellant particularly the evidence of PW1, the Appellant’s oral testimony and Exhibits 2 and P3 show that the Appellant was at the time of the incident, a twenty (20) year old healthy young man, that he stabbed the deceased with either a knife or cutlass on the chest and that the deceased died instantly, immediately or very soon after he was stabbed by the Appellant.
From the above indisputable evidence, it is beyond reasonable doubt that a young, healthy and therefore strong twenty year old man would know or have reason to know that stabbing another young man with a knife or cutlass on the chest was probable and only not likely to result in the death of the person stabbed. If the strike with any of such a weapon was to the hand or arm or leg of the deceased, then death could only be likely to result therefrom as it would not be the naturally or normally expected consequence of such acts of the Appellant to any reasonable man. But the chest of a human being, the house which protects the human heart and some other very vital organs of the human being, is a sensitive and delicate part of the body that any forceful strike or blow with usually sharp weapons such as a knife or cutlass by a twenty (20) year old healthy young man, would be very fatal to the human life. It would therefore not surprise a reasonable man that death results from such a strike for it would be the naturally expected consequence. Whether a knife or cutlass was in fact used in such a situation, the consequence would be the same because each of them is lethal.
From the definitions cited by learned Counsel of the two in the Oxford Dictionary both are described as sharp blades which when used in forceful strikes or blows to sensitive parts of the human body would ordinarily and reasonably be very fatal and lethal. Instantaneous death resulting from such act coming from particularly a young healthy man would be the natural expectation of a reasonable man in such circumstances. So a reasonable man would not be surprised that death did result from such act for he had reason to know that it was the expected consequence.
It may be recalled that the learned Counsel for the Appellant had strenuously argued that the Appellant had said in his oral testimony in Court that he used a stick to hit the deceased. I would want to say that the Lower Court was right to have found that to be an afterthought on the part of the Appellant in the face of unchallenged evidence of PW1 which was positively supported by Exhibits 1, 2 and 3 on the issue. Whereas Exhibits 2 and 3 stated the raw facts of what actually happened on the date of the incident and therefore represent the correct and sincere account thereof, the oral testimony of the Appellant on the issue was a product of the account after consultation with the counsel who represented him at the trial.
For these reasons, I am one with the Lower Court because it is correct, that the 3rd ingredient of the offence with which the Appellant was charged, was proved as required by law; beyond reasonable doubt.
I now look at and consider the defence of self defence in respect of which the Appellant had appealed.
As a foundation, I would like to state that the authorities cited by the learned Counsel for the Appellant and more have settled the requirements of and when the defence is available and can avail an accused person. In respect of the Appellant, Section 222(2) of the Penal Code makes provisions for the defence of self defence. It provides thus:-
“(2) Culpable homicide is not punishable with death if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the powers given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm that is necessary for the purpose of such defence”
In the case of LAOYE v. STATE (1985) 2 NWLR (10) 832 the Supreme Court had held that:-
“The law would excuse a killing if the killer had reasonable grounds for believing that his own life was in danger and that he had to kill in order to preserve it. The belief of the accused in such a case would be tested on objective grounds and several factors would necessarily arise in determining the objective belief, for example the quality of force used on the deceased must be the same as that with which, the accused defends himself.”
See also ODU v. STATE (2001) 10 NWLR (722) 668; NNAMAH v. STATE (2005) 2 NWLR (929) 147.
So essentially 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: –
(a) That his life was actually threatened or endangered by the acts of the deceased,
(b) That the only option that was opened to him to save his own life was to use force which was necessary on the deceased at the material time.
(c) That amount of force used on the deceased was proportionate to the threat or danger posed by the acts of the deceased.
(d) 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.
(e) Show that he did not want to fight and that he was at the material time prepared to withdraw from the danger posed to his life by the deceased.
Factors relevant for consideration in the defence are not closed and would or may vary from case to case depending on the facts, circumstances and the evidence placed before the trial Court. See: STEVEN v. STATE (1986) 5 NWLR (46) 979 at 987, EHIBOGWU v. STATE (2005)
In the present appeal the defence of self defence was first raised and introduced by the Appellant during his oral testimony at the trial where he said at page 69 of the Record of appeal inter alia that:
“My younger sister, Omoji Ademu, DW2 began to wail and shouting that Abdul Haruna and his brothers had hit our mother with stick. The deceased, Abdul Haruna then hit her with a stick and she too fainted As I ran to where my sister was, Abdul Haruna advances towards me and so I hit him with stick I had with me”
It may be recalled that in his statements in Exhibits 2 and 3 when the facts of the incidents were very fresh to his mind, the Appellant had positively stated that he hit or stabbed the deceased because he could not bear the attack or beatings of his mother and sister which resulted in their fainting or losing consciousness. This was the piece of evidence the Lower court used to find that the Appellant was in law provoked into doing what he did to the deceased and therefore convicted him of the offence of culpable homicide not punishable with death.
Learned Counsel had argued that the Lower Court was wrong to have rejected the same piece of evidence in respect of the defence of self defence since according to him, the two defences have the same considerations. Well, learned Counsel cannot be right because whereas the factors to be considered for a defence of self defence are as set out above, for the law is that for an accused person to avail himself of the defence of provocation must show that:
(i) There was sudden act of provocation by or from the deceased,
(ii) that he lost self control as a result of the provocation,
(iii) That he reacted in the heat of passion and before there was time for his passion to cool, and
(iv) That the acts were proportional to the provocation.
See: OBAJI v. STATE (1965) 1 ALL NLR 269; OLADIRAN v. STATE (1986) 1 NWLR (14) 75.
It is clear from these factors that there is a world of difference between the factors to be considered in respect of each of these defences.
For instance for self defence there must exist a real and actual threat or danger to the life of the accused person. Again, for self defence the act of the accused person must have been the only option he had to save or preserve his own life. This is not for consideration in the defence of provocation. These differences in the requirements of the two defences also make their respective legal effect significantly different because while a successful proof of self defence provides complete excuse from criminal liability, a successful defence of provocation only reduces or mitigates an offence in degree and punishment. For an offence of culpable homicide punishable with death, the successful defence of self defence would completely absolve the accused person from criminal responsibility and lead to his discharge and acquittal. The defence of provocation on its part only mitigates or reduces such an offence to one not punishable with death. See:AJUNWA v. STATE (1988) 9 SC 110 at 116-8; MUSA v. STATE (2009) 7 MJSC (Pt. 1) 52.
The question that arises now is whether the evidence of the Appellant at trial that the deceased advanced towards him and that was why he hit him with the stick he had. I have elsewhere in this judgment found that the evidence of the stick given by the accused was an afterthought in view of his statements in Exhibits 2 and 3, the Exhibit 1 and the evidence of PW1 which are all consistent in the account of what actually happened on the date of the incident. But even if the “stick” story was to be given to the Appellant, it is far from establishing that the deceased had posed any real danger or threat to his life and that his only option of preserving his life was do what he did.
The threat or danger to be shown by credible evidence for the defence of self defence is not an imagined or speculative one, but real and factual danger to be borne out by the facts and circumstances of the case.
The evidence of the Appellant on self defence is clearly insipid, impotent, weak and only a belated attempt by the Appellant to beguile the Lower Court and impose on it the duty to consider a rather wobbly hypothesis of an imagined defence of self defence. How would the prosecution be expected to controvert the supposed self defence raised by the Appellant after it had closed its case?
None of the prosecution witnesses was effectively cross examined by the defence to suggest let alone raise the issue of self defence by the Appellant. It should be noted that the duty imposed or burden placed on the prosecution by the law is to prove the ingredients of the offence charged beyond reasonable doubt as established by the judicial authorities cited on the point in this judgment. The law does not require or place any burden of proving the defence relied on or raised by an accused person in a criminal trial.
Where and when properly raised, the prosecution’s only duty is to show that the defence is not available to an accused person in law. The defence of self defence purportedly introduced by the Appellant after the prosecution’s case was closed and for the first time in his oral testimony, was not properly raised in the trial and was only an attempt by the Appellant to grab any straw within sight with the weak hope that it would avail him to escape from fully being responsible for his acts which unfortunately resulted in the death of the deceased.
The Lower Court after setting out the requirements to be satisfied by the Appellant in order for the defence to avail him, rightly came to the conclusion that the Appellant by the evidence at the trial, did not successfully make out the defence in the case. I find no reason whatsoever to interfere with that finding in this appeal. Without any hesitation, it is my decision that the, defence of self defence was not available to the Appellant from the evidence adduced at the trial before the Lower Court.
In the result, I find no merit in the Appellant’s Issue 1 and it is accordingly resolved against him.
In respect of issue 2, I have already before now found that from the totality of the evidence adduced at the trial, the prosecution had proved the ingredients of the offence with which the Appellant was charged beyond reasonable doubt as required by the law. Because the Lower court had found in its judgment that the defence of provocation availed the Appellant and there is no appeal against that decision, I find that the prosecution’s evidence had proved the offence of culpable homicide not punishable with death beyond reasonable doubt against the Appellant. I consequently resolve and answer Appellant’s Issue 2 in the affirmative and against the Appellant.
In the final result, I find no merit in this appeal and accordingly dismiss it. The conviction and sentence on the Appellant by the Lower Court in the judgment delivered on the 22/5/2009 are hereby affirmed.
PAUL ADAMU GALINJE, J.C.A.: I read in draft the judgment just delivered by my learned brother, Garba JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
The evidence adduced by the prosecution at the lower court clearly showed that the death of a human being had actually taken place and that such death was caused by the Appellant. By the nature of the injury that led to the death of the deceased as disclosed from the medical report, it is plain to conclude that the Appellant knew or had reason to know that death would be the probable consequence of his act. I do agree that the Appellant hit the deceased on the chest with a sharp object during a sudden fight which broke out from alleged acts of provocation. Clearly this is a mitigating factor which can only reduce the severity of the punishment.
There is no evidence that the deceased had in his possession, any object that could threaten the life of the Appellant at the time the later inflicted injury on the deceased. The right of private defence can therefore not avail the Appellant. For private defence must be proportionate to the amount of attack against which the defence is initiated. In AUDU VS STATE (2003) 7 NWLR (PT.820) 517 at 563 paragraph A-C, this Court per Ogbuagu JCA (as he then was) held:-
“This is so, because, if as found from the credible evidence of the PW2 and PW4 who the learned trial judge believed that the deceased was not armed with any knife, and was fatally wounded or stabbed with exhibit ‘A’, then it would be nonsensical, if not absurd, in my view, for the Appellant to reply on the defence of self defence, See QUEEN VS ADELODUN (1959) WRNLR (PT.11) 114 at 119, THE STATE v. AGBO (1973) 3 ECSLR (Pt.1) 4
For this short comment and the more detailed and elaborate reasons in the lead judgment, this appeal is unsustainable. I dismiss it and affirm the judgment and sentence passed by the lower court.
JIMI OLUKAYODE BADA, J.C.A. I had a preview of the lead Judgment of my learned brother MOHAMMED LAWAL GARBA, JCA just delivered.
My Lord has dealt with the issues for determination in this appeal in a very lucid form. I agree with my Lord’s reasoning and conclusion.
I also find the appeal unmeritorious and it is dismissed by me.
I endorse the consequential orders made in the lead Judgment.
Appearances
A.R. FatundeFor Appellant
AND
Absent and not represented. Served
through MOJ, Kogi State on 28/5/2010.For Respondent
