AHMADU MAI AHMADU v. THE STATE (2019)

AHMADU MAI AHMADU v. THE STATE

(2019)LCN/13395(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of May, 2019

CA/J/79C/2017

RATIO

CRIMINAL LAW AND PROCEDURE: DUTY OF THE PROSECUTION IN CRIMINAL MATTERS

In criminal trials prosecution is required to prove its case beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability. See Smart v State (2016) 1-2 Sc (Pt.11) P.4, (2016) 9 NWLR (Pt.1518) 447.PER ADZIRA GANA MSHELIA, J.C.A.

CULPABLE HOMICIDE: INGREDIENTS REQUIRED TO PROVE CULPABLE HOMICIDE UNDER SECTION 221 OF THE PENAL CODE

To succeed in a charge of Culpable Homicide under Section 221 of the Penal Code, the prosecution must prove the following:
(a) That the person the accused is charged of killing actually died;
(b) That the deceased died as a result of the act of the accuse person;
(c) That the act of the accused person was intentional and he knows that death or bodily harm was the likely consequence.
All the three ingredients must be proved without any one of them missing. In other words, the three ingredients must co-exist and must be proved before a conviction can be secured. See Haruna v A.G Federation (2012) 9 NWLR (Pt.1306) 419, Adava v State (2006) 9 NWLR (Pt.984) 152.PER ADZIRA GANA MSHELIA, J.C.A.

HOW TO PROVE GUILT IN A CRIMINAL MATTER

Prosecution can secure conviction through direct evidence, circumstantial evidence or confessional statement.PER ADZIRA GANA MSHELIA, J.C.A.

CONFESSION: WHEN IT CAN LEAD TO A CONVICTION

It is trite law that once a confessional statement has been proved to be direct and positive, an accused can be convicted on such statement alone without further evidence. In other words, in absence of eyewitness account, accused can be convicted based on his confessional statement Exhibit B. See Akpan v State (1992) 6 NWLR (Pt.248) 439, Idowu v State (2000) 12 NWLR (Pt.680) 48, Hassan v State (2017) 5 NWLR (Pt.1537) 1 and Igba v State (2018) 6 NWLR (Pt.1614) 44.PER ADZIRA GANA MSHELIA, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

AHMADU MAI AHMADU Appellant(s)

AND

THE STATE Respondent(s)

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Yobe State High Court of Justice presided by His Lordship Honourable Chief Judge G.M Nabaruma, sitting at Damaturu wherein he convicted and sentenced the accused (now Appellant) to five (5) years imprisonment for the offence of Culpable Homicide not punishable with death under Section 224 of the Penal Code.
The accused was arraigned before the High Court of Justice Yobe State Holden at Damaturu, on a charge which read thus:
THE CHARGE
?That you Ahmadu Mai Ahmadu ?M? on or about the 1st day of April, 2013 at about 0700 hrs in a bush at Ngoma village of Geidam Local Government Area of Yobe State which is within the jurisdiction of the Honourable Court committed the offence of Culpable Homicide not punishable with death in that, while fighting you caused the death of one Modu Alhaji ?M? by doing an illegal act to wit, cut him a cutlass on the hand and forehead with the knowledge that death will be the likely consequence of your act, you thereby committed an offence punishable under Section 224 of the Penal Code Law.?

The charge was read over and translated to the accused in Fulfulde by one Sani Umaru Nayinawa the interpreter. The accused pleaded not guilty to the charge. The prosecution called two witnesses and tendered exhibits. While the accused testified on his own behalf and did not call any witness. Both counsel submitted written addresses. The learned trial Chief Judge convicted and sentenced the accused to five years imprisonment for the offence of culpable homicide not punishable with death.

Dissatisfied with the Judgment accused now Appellant lodged an appeal to this Court via his Notice of Appeal dated 10th day of September 2016 containing four grounds of appeal.

In compliance with the rules of Court, parties exchanged their respective briefs of argument. Appellant?s Brief of Argument settled by Felix Akin Akinola, Esq. was dated 4th day of June, 2018 and filed on 7th day of June 2018 but deemed properly filed on 21/11/2018. While the Respondent?s Brief of Argument dated 18th day of December 2018 was filed on 20/12/2018 and settled by Abdullahi Adamu Nikau Esq.
?
When the appeal came up for hearing Appellant?s

Brief of Argument was deemed argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016. While Respondent?s counsel adopted Respondents Brief of Argument and urged the Court to dismiss the appeal.

The Appellant?s Brief of Argument contained three issues for determination as follows:
1. Whether the prosecution has proved the cause of death of the deceased and whether it was proved that the act of the Appellant caused the death?
2. Whether the deceased was properly identified in this case?
3. Whether the trial Court was right when it held that defences of provocation and self defence are not available to the appellant herein?

On behalf of the Respondent learned counsel for the Respondent adopted the three issues formulated by Appellant.
I have examined the issues formulated by the Appellant. I will adopt same in the determination of this appeal since Respondent did not formulate any new issues. For convenience I will treat the issues together.

ISSUE 1-3
?In arguing issue one learned counsel for the Appellant submitted that prosecution did not prove the cause of death of the deceased in this

case. That cause of death of a deceased in homicide cases is a vital fact that the prosecution is duty bound to prove by credible evidence in order to succeed. That prosecution must also go further to prove not only the cause of death but must also prove that the act of the accused was the cause of death. According to counsel prosecution has failed to prove that the act of the appellant herein caused the death of the deceased in this case. That from the facts before the trial Court the appellant fought with the deceased who was later found dead. That prosecution ought to prove what led to the death of the deceased as there was no evidence of injury that the deceased sustained as none of the witnesses for the prosecution witness the fight nor told the trial Court the degree of injury. It is trite that when there is doubt in criminal trials same should be resolved in favour of the accused and urged Court to so hold. That the death of the a deceased can be established by sufficient evidence other than medical evidence showing beyond reasonable doubt that the death in question resulted from the particular act of the deceased. Counsel maintained and urged the Court

to hold that the prosecution has failed to prove the cause of the death of the deceased in this case and also had failed to prove that the act of the accuse/appellant was responsible for the death in question. Reliance placed on Uguru v State (2002) 9 NWLR (Pt.77) 90 @ 111.
?
Under issue two counsel posed a question as to whether deceased was properly identified? Learned counsel submitted that deceased was not properly identified in this case. According to counsel the charge against the appellant was that he cause the death of one Modu Alhaji Sheme while fighting. That both PW1 and PW2 did not mention the name of the deceased in their testimonies throughout. That none of the witnesses testified that the deceased in this case is Modu Alhaji Sheme. PW1 did not interview the relations of the deceased to know even the name of the deceased and to know who identified the deceased as his relation or a known person to him. That PW2 only referred to the deceased as young Kanuri man without mentioning his name learned counsel further submitted that Appellant in his statement (Exhibit B) never mentioned the name of Modu Alhaji Sheme. That Appellant only stated under

cross-examination that the person he fought with was Modu Alhaji Sheme. According to counsel this will not relieve the prosecution the duty to prove the identity of the deceased in this case. Reliance placed on Amusa v State (2002) 2 NWLR (Pt.750) 73. He urged the Court to resolve this issue in favour of the Appellant.

Issue 3 is whether the trial Court was right when it held that defence of self defence is not available to the appellant herein. Learned counsel submitted that the Appellant raised the defence of self-defence in his response to the charge against him. It was contended that self defence is one of the defences available to an accused of a criminal charge the appellant faced at the trial Court. That self defence postulates the use of force to protect himself, one?s family or property from a real or threatened attack. Counsel cited Section 33(2)(a) of the Constitution of the Federal Republic of Nigeria 1999 to support his contention that a citizen has a right to defend his person or family and property against unwarranted aggression trespass or threat. See also Mohammed v State (2017) 13 NWLR (Pt.1583) 386. Counsel contended that a

successful plea of the defence of self defence in a criminal trial is to exculpate the accused i.e it would excuse the accused of the offence from punishment. That the right to self-defence or private defence is provided for in Section 59-65 of the Penal Code. See Kwaghshir v State (1995) 3 NWLR (Pt.386) 651 and Mohammed v State (supra). Learned counsel submitted that upon careful perusal of facts of the case in this appeal and marrying same with the principles of law enunciated above, the appellant is entitled to the defence of self-defence. According to counsel the entire statement of the appellant to the police reveal that appellant never relied on provocation as a defence. That the initial aggressor had earlier cut his forehead and hand with cutlass, so appellant had to pervert the attack of his attacker which he honestly and reasonably anticipated danger or peril to his life or great bodily harm. That the word ?provoked? appeared in Exhibit ?B? is not a defence of provocation in law. That trial Court ought to have considered the defence of self-defence. Failure to consider same has occasioned serious miscarriage of justice. See Laoye v State

(supra). That in a case in which the evidence discloses a possible defence of self-defence, the anus remains throughout on the prosecution to establish that the accused is guilty of the crime of murder and onus is never on the accused to establish this defence. Reliance placed on Milla v State (1985) 3 NWLR (Pt.11) 190, wherein the Court held that the onus to negative the defence of self-defence is on the prosecution. See also Apugo v State (2006) 15 NWLR (Pt.1002) 227 @ 257, Omoregie v State (2008) 18 NWLR (Pt.1119) 464 @ 477 and 484, Kwaghshir v State (supra) and Nwede v State (1985) 3 NWLR (Pt.13) 444. See also Ochari v State (2017) 18 NWLR (Pt.1596) 1 @ 24. He urged the Court to set aside the Judgment of the trial Court and in its place enter Judgment of discharge and acquittal.

In response under issue one, learned counsel for the respondent submitted that from a long line of decided cases, it is already settled beyond controversy that for the prosecution to secure conviction on a charge of murder, the burden is on the prosecution to prove the followings:
i. That the deceased had died,
ii. That the death of the deceased was caused by

the accused, and
iii. That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.

It is trite law that in order to secure conviction against the appellant all the essential ingredients of the offence must be established beyond reasonable doubt. Reliance placed on John Ogbu & Anor v State (2007) LPELR ? SC 2289 (SC), Abainta Okendu Ubani & Ors v The State (2003) 12 SCM 310 @ 317, Ogba v The State (1992) 2 NWLR (Pt.222) 12 SCM 164, Monday Nwaeze v The State (1996) 2 NWLR (Pt.488) 11 Fred Dapere Gira v The State (1996) 4 NWLR (Pt.443) 375. That generally, the evidence relied upon by the prosecution to sustain and establish the charge of murder may be direct or circumstantial. That whether evidence is direct or circumstantial, it must establish the guilt of the accused beyond reasonable doubt. Counsel submitted that the guilt of the accused can be proved in any of the three ways:
1. By evidence of eye witness
2. By circumstantial evidence
3. By confessional statement.
Reliance placed on Emeka v The State

(2001) 14 NWLR (Pt.734) 666 @ 669 ratio 1. According to counsel, respondent in the instant appeal has met the pre-requisite for securing conviction against the appellant for the offence of culpable homicide not punishable with death under Section 224 of the Penal Code through direct oral evidence of PW1-2. Counsel also referred to Exhibit A and A1 the weapon used in committing the crime and Exhibit ?B? the extra judicial statement of the Appellant at SCIID, Damaturu where he gave a vivid account as to how he committed the offence.
?
Learned counsel further submitted that the purport of proof in all criminal trials is that if the essential ingredients of the offence have been proved by the prosecution, the charge is proved beyond reasonable doubt. That the standard need not be as high as proof beyond a shadow of doubt. See Ugo v Commissioner of Police (1972) 11 SC at 37, Ameh v State (1973) 6-75 SC 27 and Moses Jua v State (2010) 43 WRN 1 at 24-25. Learned counsel submitted that the important consideration for determining responsibility is whether death of the deceased was caused by injuries he sustained through the act of the accused and not

whether from the medical point of view death was caused by such injuries. See R. V Effanga (1969) 1 ALL NLR 339 and Eric Uyo v Attorney General Bendel State (1986) 2 SC 1 at 31-33. That the law is settled that in as much as medical evidence is desirable to establish the cause of death in a case of murder, it is not a sine qua non. That it has been stated in plethora of cases that cause of death can be established by sufficient evidence which shows beyond reasonable doubt that death resulted from the particular unlawful act of the accused person or the manner of death of the deceased. That this fact can be properly inferred from the evidence adduced and circumstances of the case. See Azu v The State (1993)6 NWLR (Pt.299) 303 Akpuenya v The State (1976) 11 SC 269 and Ilori v The State (1980) 8-11 SC 81. He urged Court to resolve the issue against the appellant.

Under issue two learned counsel submitted that in a case of homicide as in this instant appeal the record of proceeding at the trial Court shows that the name Modu Alhaji Sheme was mentioned as the deceased person. Reference made to page 41 of the record. Counsel submitted that the fact that PW2

referred to the deceased person as young Kanuri man in page 19 of the record, it is not fatal to the respondent case at the trial Court since the statement was corroborated by the testimony of DW1 under Cross-examination where he vividly mentioned the name of the deceased. SeeAli v State (2012) 1 NWLR (Pt.1299) 209 at 217-219. That the failure by the respondent witness to mention the name of the deceased is not fatal since the appellant has cleared the doubt on this ground. He urged Court to affirm the conviction of the Appellant and dismiss the appeal.

As regards issue three counsel submitted that no Court is bound to speculate on what possible defences can be open to a person before it, but where in a trial for homicide, the evidence suggests a line of defence, it is the duty of the Court to consider and deal with that defence whether or not the accused or his counsel expressly raised the defence. That accused person in his defence woefully tried to raise a defence of provocation and or self defence which defences cannot avail him. Counsel referred to the statement Exhibit B wherein accused contested that he removed his cutlass and

machete the deceased on his counter-head as well as his left arm, immediately he fell down on the ground. That this act was not done in the heat of passion caused by sudden provocation and before there is time for passion to cool. According to counsel in his oral testimony he informed the lower court that it was the deceased who first attacked him before he retaliated. Counsel contended that accused did not commit the crime in the heat of passion caused by sudden provocation but deliberately murdered the deceased. Reliance placed on Ifenedo v The State (1967) NMLR 2000. Counsel referred to what amounts to confession as defined under S.28 of the Evidence Act 2011. See Hassan v The State (2001) 8 MJSC 105 at 108. That 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. Reliance placed onYesufu v The State (1976) 6 Sc 167 at 173. That the lower Court had properly evaluated the evidence put forward by the appellant and came to a conclusion that no any form of defence was established by him. He urged the Court to

dismiss the appeal as lacking in merit.

Prosecution can secure conviction through direct evidence, circumstantial evidence or confessional statement.

There is no dispute as to the fact that one Modu Alhaji Sheme died. The accused confirmed this fact in his statement to the Police Exhibit ?B? as well as the testimony of PW2 the accused father.

?As regards the second ingredient Appellant?s contention is that the prosecution did not prove the cause of death of the deceased in this case and that the act of the Appellant caused the death. There is no eye witness account to the incident. Prosecution called two witnesses to prove its case. While the accused testified on his own behalf. PW1 was the IPO who recorded the voluntary statement of accused admitted in evidence as Exhibit B. PW2 accused father narrated what accused told him happened between him (accused) and the deceased when he went out with ?his animals for grazing. They had a fight with one man. Following the information he received from his son PW2 went to the scene (farm) and saw the boy lying down dead. PW2 sent his son and his brother to the police station to inform the DPO of the place. PW2 further stated

that he took his son to the hospital for treatment and later was taken to the Police Station. DW1 in his defence testified in line with what he narrated to the Police in Exhibit ?B?. I will reproduce hereunder relevant portion of Exhibit ?B? which reads thus:
?That on 01/04/2013 at about 0700hrs, I was in the bush rearing cows when one Modu Alhaji met me and told me that I have entered his farm land with my cows. I told him that I did not enter his farm land because when he met me was (sic) inside the bush. I told him that I did not even they enter his farm land it should be another person that I am not the one. From there he removed his cutlass and cut me on my forehead as well as me left arm based on that I was provoked and pool out my cutlass and machete him on his center head as well as his left arm immediately he fell down on the ground and I left him there and walked to my house with my cattle on my arrival at home I explained to my father what happened. Then my father by name Mai Ahmadu and my elder brother by name Mamman Mai Ahmadu followed me to the scene of crime, on our arrival we met him dead. We left him there

and return home and (look for a motor vehicle) and went to Police State and reported the matter at Geidam Police State then the Police took their vehicle and followed us to the place on our arrival with the police men, they stopped took the picture of the deceased and removed corpse to General Hospital Geidam. Infact I have any problem or misunderstanding with the deceased before till this incident. I have never even quarrel or fight each other before ?..?
?
DW1 gave a vivid account of what transpired between him and the deceased on the fateful day. Appellant made a voluntary statement to the Police in Exhibit ?B?. Appellant confessed to killing the deceased though he explained the circumstances that made him to attack deceased with a cutlass. According to him the deceased first cut him on his forehead with a cutlass before he retaliated. It is trite law that once a confessional statement has been proved to be direct and positive, an accused can be convicted on such statement alone without further evidence. In other words, in absence of eyewitness account, accused can be convicted based on his confessional statement Exhibit

?B?. See Akpan v State (1992) 6 NWLR (Pt.248) 439, Idowu v State (2000) 12 NWLR (Pt.680) 48, Hassan v State (2017) 5 NWLR (Pt.1537) 1 and Igba v State (2018) 6 NWLR (Pt.1614) 44.

The available evidence disclosed that the deceased died instantly after he was attacked with the matchete by the accused. Where the deceased died instantly from an attack, the need for medical evidence to ascertain cause of death is unnecessary. In the case at hand accused was responsible for the death of the deceased. It was the act of the accused that caused the death of the deceased. See Azu v The State (1993) 6 NWLR (Pt. 299) 303. Appellant counsel had also argued that the deceased was not properly identified in this case. This argument in my humble view cannot hold water. In Exhibit ?B? accused referred to the person they fought as Modu Alhaji. Under cross examination he said the person he fought with was Modu Alhaji Sheme. The failure of PW2 to mention the name of the deceased is not fatal to the prosecution?s case. The record of proceedings of the trial Court also shows that the name of Modu Alhaji Sheme was mentioned as the deceased

person. I agree with Respondent?s counsel that ?the doubt has been cleared by DW1. Under cross-examination he mentioned the name of Modu Alhaji Sheme as the deceased. Appellant had clearly stated in his confessional statement to the Police (Exhibit ?B?) that when he attacked the deceased with his machete he fell down and he left. The statement revealed that when Appellant told his father PW2 what happened, they came to the scene and saw the body. Report was made to the police immediately and they went to the scene and removed the body. It is my humble view that the identity of the deceased was never in doubt. The body found at the scene was the person who fought with the accused/appellant and it was the act of the deceased that caused his death.

Appellant also raised the defence of self defence. I agree with Appellant?s counsel that it is the duty of the Court to consider and deal with that defence whether or not the accused or his counsel expressly raised the defence. As earlier stated there was no eyewitness account, so we are left with the story narrated by the Appellant in his testimony and Exhibit ?B?.

Appellant stated that he attacked the deceased because the deceased first attacked him with a machete, cut his forehead and hand. This may suggest, accused acted in self-defence. However, this story is not supported by credible evidence to show that he suffered any injury from the attack. PW2 stated that he took accused to the hospital for treatment. There is no medical report or document from the hospital to show that accused was treated for injuries sustained from machete cut on the fateful day. DW1 (accused) did not show any scar on his forehead or hand to confirm that the deceased used machete to cut his forehead and arm. In the circumstances. I hold the view that defence of self-defence is not available to the appellant.

The next issue to consider is whether the defence of provocation raised in the accused statement to the Police is available to him. Authorities abound that provocation if proved can reduce the intensity of the offence of Culpable Homicide punishable with death to that of not punishable with death. Apart from what accused narrated to the police in Exhibit ?B? that himself and deceased had a fight, there is no evidence to

show that appellant attacked the deceased with machete in the heat of passion. I agree with the finding of the learned trial Judge that provocation cannot avail the accused. Appellant was charged under S. 224 of the Penal Code. The 1st and 2nd ingredients for the offence of Culpable Homicide not punishable with death have been proved. Prosecution has proved beyond reasonable doubt that a man died and the death was a consequence of the act of the accused. What has not been clearly established is the 3rd ingredient. However, considering the fact that deceased died instantly after he was attacked with the machete on his forehead, one could conclude that accused killed the deceased knowing that death would be the probable consequence of his act. The learned trial Judge rightly found the accused/appellant guilty of Culpable Homicide not punishable with death.
?
I therefore resolve all the issues against the Appellant.
The learned trial Chief Judge in my view properly evaluated the evidence adduced before it. The findings were not shown to be perverse. Despite the gravity of the offence, the learned trial Chief Judge was extremely lenient while sentencing

the Appellant. Appellant was sentenced to five years imprisonment. There is no complaint against the sentence, by the prosecution. This Court have no reason to interfere with the findings of fact made by the trial Court.

In the result, I hold that this appeal is devoid of merit and same is dismissed. The Judgment of Yobe State High Court of Justice delivered on 28/06/2016 by the Chief Judge Nabaruma J. in Charge No.YBS/DT/HC/I/C/2013 is hereby affirmed.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Adzira Gana Mshelia, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree the reasoning and abide the conclusion reached therein.

BOLOUKUROMO MOSES UGO, J.C.A.: I read before now the judgment of learned brother ADZIRA GANA MSHELIA, J.C.A., and I am in agreement with her reasoning and conclusion including her view that the learned trial judge was extremely lenient by sentencing appellant to just five years imprisonment for taking the life of the deceased in the

circumstances. I certainly would have been inclined to review the sentence if the state had appealed against it.
?
In the absence of that, I also dismiss the appeal and affirm the judgment of the trial judge, including, very reluctantly, the sentence of five years he imposed on appellant.

Appearances:

Appellant absent (though served)For Appellant(s)

U. Ismaila Chief State Counsel with him,
A.A. Nikau Principal State Counsel
Ministry of Justice, Yobe State
For Respondent(s)

Appearances

Appellant absent (though served)For Appellant

AND

U. Ismaila (Chief State Counsel) with him, A.A. Nikau (Principal State Counsel, Ministry of Justice, Yobe State)For Respondent