ALI ZAMAN v. THE STATE
(2015)LCN/7838(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of March, 2015
CA/J/8C/2013
RATIO
COURT: THE PRINCIPLE THAT A JUDGE MUST BE IMPARTIAL AND BIAS; THE GROUNDS IN WHICH A PERSON MAY BE DISQUALIFIED FROM ACTING IN A JUDICIAL OR QUASI-JUDICIAL CAPACITY AND HOW THE DOES THE COURT CONSIDER WHETHER THERE WAS A REAL LIKELIHOOD OF BIAS
In Olve & Ors. vs. Enenwali & Ors. (1976) 1 NMLR the Supreme Court held at page 49 to 50 per Nasir, JSC (as he then was) as follows: “Of the cases referred to by Mr. Balogun, the case of Obadara and Ors. vs. The President, Ibadan West District Grade “B” Court (1964) 1 All NLR 336 is in our view relevant in that it has enunciated the correct position of the law. In giving the judgment of the Court, Brett, A-G. C.J.N, stated at page 344 as follows: “The principle that a judge must be impartial is accepted in the jurisprudence of any civilized country and there are no grounds for holding that in this respect the law of Nigeria differs from the law of England or for hesitating to follow the English decisions. The English decisions were reviewed by the Divisional Court in R. vs. Camborne Justices (1955) 1 Q.B. 41, and we would adopt the following passage from page 51 of the judgment as setting out the law to be applied in Nigeria – Blackburn, J., namely, that to disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject matter of the proceedings, a real likelihood of bias must be shown. This Court is further of opinion that a real likelihood of bias must be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries.” The decision in R. vs. Camborne Justices, ex p. Pearce (1955) 1 Q.B. 41 (already referred to above) together with other authorities were reviewed by Lord Denning, M.R. in the more recent case of Metropolitan Properties Co. (F.G.C.) Ltd. vs. Lennon (1969) 1 Q.B. 577, 598. After reviewing the facts in the case before him, His Lordship said in respect of the law as follows: “A man may be disqualified from sitting in a judicial capacity on one or two grounds. First, a “direct pecuniary interest” in the subject matter. Second, “bias” in favour of one side or against the other… So far as bias is concerned, it was acknowledged that there was no actual bias on the part of Mr. Lennon, and no want of good faith. But it was said that there was, albeit unconsciously, a real likelihood of bias. This is a matter on which the law is not clear; but I start with the oft-repeated saying of Lord Heward, C.J., in R. vs. Sussex Justices, ex p. McCarthy (1924) 1 K.B. 256, 259: ‘It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.’ In R. vs. Barnsley Licensing Justices, ex p. Barnsley and District Licensed Victuallers’ Association (1960) 2 Q.B. 167, 187, Devlin, J., appears to have limited that principle considerably but I would stand by it. It brings home this point: in considering whether there was a real likelihood of bias, the Court does not look at the mind of the Chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact he would, or did, favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand; see R. vs. Huggins (1895) 1 Q.B. 563 and R. vs. Sunderland Justices (1901) 2 K.B. 357 at C.A. per Vaughan Williams, L.J. Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough: see R. vs. Camborne Justices, ex p. Pearce (1955) 1 Q.B. 41 and R. vs. Nailsworth Licensing Justices, ex p. Bird (1953) 2 All E.R. 652, D.C. There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘the judge was biased.'” Again in Deduwa & Ors. vs. Okorodudu & Ors. (1976) 1 NMLR 236, Alexander, C.J.N. held at page 245 to 246 as follows: “The principles to be applied in these circumstances have been stated many times in a number of dicta. In R. vs. Rand (1866) L.R. 1 C.P. 230, Blackburn, J., said at page 232: “There is no doubt that any direct pecuniary interest however small in the subject matter of inquiry does disqualify a person from acting as a Judge in the matter.” In the Queen vs. McKenzie (1892) 2 Q.B. 519 it was contended that a conviction by justices for an offence against Section 7 of the Conspiracy and Protection of Property Act, 1875 should be quashed on the ground that three of the convicting justices were disqualified by reason of “interest” and “bias”. The facts were that the prosecutor was the local agent of a shipping federation, whilst the justices were shareholders members of the federation. It was admitted that the justices had no pecuniary interest in the matter. The Court held further that the justices’ so-called “interest” was too indirect to sustain an allegation of pecuniary interest or bias on their part.” After summarizing the facts of the case, his Lordship concluded at page 246 to 247 of the judgment as follows: “It is of course, beyond question that the High Court at which the learned judge presided is a Court established by law and constituted in such a manner as to secure its independence and impartiality. The question to be answered and decided in this con is therefore, what is a “fair hearing”. A fair hearing must, of course, be a hearing that does not contravene the principles of natural justice. Evershed, M.R., said in Abbot vs. Sullivan (1952) 1 K.B. 189, 195: “The principles of natural justices are easy to proclaim, but their precise extent is far less easy to define.” However, the two essential elements of natural justice with which we are concerned in this appeal are that: (1) No man shall be judge in his own cause; and (2) Both sides shall be heard, or audi alterem partem. As regards the first principle, the truism that, “Judges, like Caesar’s wife, should be above suspicion” was given due recognition in the dictum of Brown, L.J., in Leeson vs. General Council of Medical Education (1890) 43 Ch.D. 366, 385. We have already dismissed the argument that the learned judge had a legal “interest” which disqualified him from hearing the action however, the examination of the allegation of “interest” or “bias” or real likelihood of bias on the part of the trial Judge in the conduct of the proceedings before him goes much further than this. Although the smallest pecuniary interest will disqualify a Judge, there are other grounds based on public policy on which bias or the real likelihood of bias may disqualify a Judge. Lush, J., said in Serjeant vs. Dale (1877) 2 Q.B.D. 558, 567: “The law, in laying down this strict rule, has regard not so much perhaps to the motive which might be supposed to bias the Judge as to the susceptibilities of the litigant parties. One important object, at all events, is to clear away everything which might engender suspicion and distrust of tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security.” Again, in Metropolitan Properties vs. Lennon (1969) 1 Q.B. 577, Lord Denning, M.R. said at page 599: “In considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact, favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then, he not sit. And if he does sit, his decision cannot stand….. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough… There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘the judge was biased.” per. JOSEPH TINE TUR, J.C.A.
LAW AND MEDICINE; THE MEANING OF THE EXPRESSION “DOCTOR”,” MEDICAL DOCTOR”, ‘CORONER”, ” PATHOLOGY”
The word “doctor,” and the expression “medical doctor” or “medical officer” are not defined in the British Medical Association Illustrated Medical Dictionary, 2nd edition, 2009. A “Coroner” is defined in the dictionary at page 147 as, “A public officer appointed to inquire into the cause of death when it is unknown, or when it is suspected or known to result from unnatural causes. The Coroner holds an inquest, sometimes before a jury.” The authors define “pathology” and a “pathologist” at page 436 as, “The study of disease – its causes, mechanisms, and effects on the body. Pathologists conduct autopsies to determine causes of death and to determine the effects that a disease or a treatment has had.” The phrase “Medical Doctor” or “medical officer” are also not defined in the Illustrated Medical Dictionary, 2nd edition, 2009. The British Medical Association describes the dictionary as, “The only full-colour illustrated dictionary that provides authoritative yet accessible definitions of every important term” at the back cover. This has legal implications. The expressions “Medical Doctor” or “medical officer” are not important medical expression. They are vague, though in common day usage. A “pathologist” but not a “medical doctor” or “medical officer” ought to be qualified to perform autopsy or post-mortem examination on corpses. “Autopsy” is defined as “A postmortem examination of the body, including the internal organs, usually to determine the cause of death.” (p.61). “Postmortem examination” means “An alternative term for an autopsy.” (p.458). John Afakirya Manza (Pw2), gave evidence that, “On the 3rd March, 2008 I was on duty at the General Hospital, Damboa while on duty a dead body was brought to Damboa General Hospital by some police men asked me to examine the dead body. I examined the dead body I discovered that the body was started decomposing. I also saw 2 stab wounds on the right side of the abdomen of the deceased…” (See page 12 lines 14-19). per. JOSEPH TINE TUR, J.C.A.
EVIDENCE: ADMISSION; WHETHER AN ADMISSION IS A CONCLUSIVE PROOF OF THE MATTER ADMITTED AND WHETHER THEY MAY OPERATE AS ESTOPPEL AND THE DUTY OF THE TRIAL COURT TO EXAMINE ALL THE REASONS TO SEE WHETHER TAKING INTO CONSIDERATION ALL CIRCUMSTANCES THAT LED TO THE COMMISSION OF CRIME, THE REASONS ARE JUSTIFIABLE WHERE A PERSON CONFESSES TO THE COMMISSION OF THE CRIME
An “admission” is “a statement, oral or documentary, or conduct which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and in the circumstances hereafter mentioned in the Act.” See Section 20 of the Act (supra). But Section 27 of the Evidence Act (supra) makes it clear that “Admissions are not conclusive proof of the matters admitted but they may operate as estoppel under part …” When a person confesses to the commission of a crime and gives reasons for doing so, it is incumbent on the trial Court to examine all the reasons to see whether, taking into consideration all the circumstances that led to the commission of the crime, the reasons are justifiable. For example, in this case, did the appellant act in the face of slight or grave provocation, or in self-defence so as to protect himself against violence to his body using such force as is reasonably necessary to protect himself from unlawful violence to his person or not, or to protect unlawful violence to his dignity? If he did, this is permitted under Section 33(1)(2)(a)-(c) and 34(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. The learned trial Judge was more pre-occupied with the fact that the appellant confessed to stabbing the deceased to death at a time he was drunk with alcohol during or after merrymaking at the wedding without taking into consideration that the deceased was the aggressor. That he was the first to attack the appellant on the neck at night; that the deceased was also drunk at the wedding party before the fight ensued. The appellant had to fight his aggressor in retaliation using his knife as the murder weapon. There is no law which forbides right-thinking members of society, particularly farmers from carrying knives at any moment of their lives. What members of the community in which the appellant lives does, matters. In Rex vs. Amodu Adamu (1944) 10 WACA 161 the deceased and the appellant were all armed. The deceased had a dane gun, a matchet and a hunting lamp. After the killing the appellant’s house was searched and the deceased’s gun and matchet were found with blood stains. On the body of the appellant were recently unexplained injuries. The fight took place between 9:00pm and thereafter. There was no eye witness to the fight except the evidence of the deceased’s son that soon after his deceased father left the house in search of the thief who had stolen his money, he had gunshots. The learned trial Judge disbelieved the appellant, convicted and sentenced him to death. The West African Court of Appeal concurred with the finding that it was the appellant that killed the deceased. Nevertheless, their Lordships in discharging and acquitting the appellant held at page 162 to 163 of the judgment as follows: “We are of opinion, however, that in the judgment of the learned trial Judge there is grave misdirection by non-direction. It is clear that the Judge assumed throughout that the killing was murder, and overlooked the fact that the onus was on the prosecution to prove that a murder had been committed, in other words that the killing amounted to murder. The onus was not upon the appellant to prove that no crime has been committed, even though such proof rested upon facts pecuniary within his own knowledge. (Woomington vs. Director Public Prosecution (1935) A.C. 462; Attygalle & Anor. vs. The King (1936) A.C. 338; Seneviratne vs. R. (1936) 3 All E.R. 36). In most cases where a man is found brutally killed by the road side there is a strong presumption that he has been murdered but here the circumstances were unusual and that presumption did not arise. The deceased went out doubly armed and obviously prepared to use his arms against a supposed thief. The evidence points to his having actually fired his gun and used his matchet. There is no evidence whatever that the appellant was in fact the culprit who stole the deceased’s clock and money. No motive is apparent for the appellant to have made an attack upon the deceased. per. JOSEPH TINE TUR, J.C.A.
CRIMINAL LAW: SELF DEFENCE; WHETHER HOMICIDE IS EXCUSABLE IN SELF DEFENCE
In Rex vs. Rose (1884) 15 Cox C.C. 550, Lopez, J., (as he then was) held as follows: “Homicide is excusable if a person takes away the life of another in defending himself, if the fatal blow which takes away life is necessary for his preservation. The law says not only in self-defence such as I have described may homicide be excusable, but also it may be excusable if the fatal blow inflicted was necessary for the preservation of life. In the case of parent and child, if the parent has reason to believe that the life of a child is in imminent danger by reason of an assault by another person, and that the only possible, fair, and reasonable means of saving the child’s life is by doing something which will cause the death of that person, the law excuses that act. It is the same of a child with regard to a parent; it is the same in the case of a husband and wife. Therefore, I propose to lay the law before you in this form: If you think, having regard to the evidence, and drawing fair and proper inferences from it, that the prisoner at the bar acted without vindictive feeling towards his father when he fired the shot, if you think that at the time he fired that shot he honestly believed, and had reasonable grounds for the belief, that his mother’s life was in imminent peril, and that the fatal shot which he fired was absolutely necessary for the preservation of her life, then he ought to be excused, and the law will excuse him, from the consequences of the homicide. If however, on the other hand, you cannot come to that conclusion, if you think, and think without any reasonable doubt, that it is not a fair inference to be drawn from the evidence, but are clearly of opinion that he acted vindictively, and had not such a belief as I have described to you, or had not reasonable grounds for such a belief, then you must find him guilty of murder.” per. JOSEPH TINE TUR, J.C.A.
JUSTICES:
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
ALI ZAMAN – Appellant(s)
AND
THE STATE – Respondent(s)
JOSEPH TINE TUR, J.C.A.(Delivering The Leading Judgment): The appellant has appealed against his trial, conviction and sentence to death on 29th June, 2012 under Section 221(b) of the Penal Code by A.Y. Sanya, J., of the Borno State High Court of Justice holden at Maiduguri. The original Notice of Appeal filed on 4th September, 2012 contained three grounds. Leave was subsequently granted the appellant to amend the Notice and Grounds of Appeal with a deeming order on 21st May, 2014. Appellant filed a brief of argument on 14th March, 2014 with a deeming order on 21st May, 2014. The respondent’s brief was filed on 17th June, 2014. Appellant filed a reply brief on 10th July, 2014. Learned Counsel adopted their respective briefs of argument on 4th March, 2015 when the appeal came up for hearing.
There was a wedding ceremony to which it is alleged the appellant and the deceased attended. The wedding is said to have according to the charge being held at Abaderi village in Damboa Local Government Area of Borno State on or about 29th February, 2008. During merrymaking, a fight ensued between the deceased and the appellant. The appellant stabbed the deceased to death hence his arraignment. The charge under which the appellant was arraigned is couched as follows:
“THE CHARGE: That you Ali Zaman ‘M’ of Chibok Local Government Area of Borno State on or about the 29th day of February, 2008 at about 2:00 hour at Abaderi village of Damboa Local Government Area of Borno State which is within the jurisdiction of this Honourable Court stabbed one Chari Ashiekh ‘M’ of Kombi village, Damboa Local Government with a knife on his chest and abdomen with the knowledge that death would be the probable consequence of your act and you thereby committed an offence punishable under Section 221(b) of the Penal Code Law.”
The prosecution called Pw1-Pw6 and relied on the extra-judicial statements of the appellant tendered through Pw1 (Exhibit “A1”-“A3”) and Pw6 (Exhibit “C1” and “C2”). The post-mortem report was put in and marked Exhibit “C” and the knife used in stabbing the deceased was admitted as Exhibit “D”. The appellant testified as Dw1 but called no witness.
The learned trial Judge convicted and sentenced the appellant to death.
The appellant distilled the following issues for determination to wit:
1. Whether the arraignment, trial, conviction and sentence of the appellant by the learned trial Judge was not a nullity due the fact that there was no evidence on the face of the record that the charge was read to him? (Grounds of Appeal No.5 of the Amended Notice refer).
2. Whether the trial, conviction and sentence of the appellant was not a nullity in view of the learned trial Judge’s earlier disqualification of himself from continuation of the trial, having been full seized of the facts of the case in his home town, thus having his mind biased already? (Ground of Appeal No.4 on the amended Notice refer).
3. Whether the learned trial Judge was right in his judgment not to have considered the defence of self defence put up by the appellant in Exhibit “A1”-“A3” and “C1”-“C2″? (Ground of Appeal No.6 of the amended Notice refer).
4. Whether the learned trial Judge was right in law to convict and sentence the appellant upon the Evidence adduced? (Ground of Appeal No.1, 2, and 3 of the amended Notice of Appeal refers).”
The respondent formulated the following issues for consideration:
“1. Whether having regard to the quality of evidence adduced by the prosecution before the Lower Court, the arraignment, trial, conviction and sentence of the appellant was a nullity? (Distilled from the amended Grounds of Appeal No.5).
2. Whether the attempt to disqualify himself to hear the case by the Court below, at a stage when the 5th prosecution witness testify half way and the Court’s subsequent request to re-assign the case to another Judge for trial, is subject to an approval by the Honourable Chief Judge of Borno State? (Distilled from the amended Grounds of Appeal No.4).
3. Whether having regards to the totality of the evidence adduced before the Lower Court, the appellant can be availed with the defence of self-defence? (Distilled from the amended Grounds of Appeal No.6).
?4. Whether the learned trial Judge was right in law when he convicted and sentenced the appellant to death by hanging upon the evidence adduced? (Distilled from the amended Grounds of Appeal No.1, 2 and 3).”
My humble opinion is that by the provisions of Order 18 Rule 3(4) and 4(1) and (2) of the Court of Appeal Rules, 2011, it is a party aggrieved by the decision of a Lower Court that usually appeals and settles in the brief of argument what he considers to be the issues arising from the judgment, taking into consideration the amended or additional grounds of appeal. The duty of the respondent is to answer all the material points raised by the appellant in his brief of argument. The course of doing so, the respondent will concede some points not in dispute, but show why the appeal should be dismissed. Without a cross-appeal or a Respondent’s Notice, I do not appreciate respondents or their learned Counsel formulating distinct issues for determination. Respondents will do well if they merely adopt the issues formulated by the appellant for determination. This is to avoid a proliferation of issues for determination by the Appeal Court. See Ononuju vs. State (2014) 8 NWLR (Pt.1409) 345 at 378 paragraphs “A”-“D”; Akinlagun vs. Oshobajo (2006) 12 NWLR (Pt.993) 60 at 80 paragraphs “D”-“E” and Atanda & Ors. vs. Akanji & Ors. (1989) 2 NSCC 511 at 537. I shall confine myself to the issues formulated for determination by the appellant’s learned Counsel. But before doing so, I shall set out in a nutshell the facts that led to the arraignment, trial and
conviction of the appellant by the Court below.
ISSUE ONE:
The argument by learned Counsel on issue one is that the learned trial Judge breached the provisions of Section 187(1) of the Criminal Procedure Code because upon arraignment, the charge was not read out and explained to the appellant. The learned Counsel relied on the following authorities: Adeniji vs. The State (2001) 5 SCNJ 31 at 379; Yerima vs. The State (2010) 14 NWLR (Pt.1213) 25 at 39; Dibie vs. The State (2007) 9 NWLR (Pt.1038) 30 at 46-47; Chukwu vs. The State (2005) 1 NWLR (Pt.908) 50 at 54 and Mohammed vs. The State (2013) 5 NWLR (Pt.1347) 315 at 329 to urge that the entire trial be declared a nullity.
The learned Counsel to the respondent contended that the learned trial Judge complied with the provisions of Section 187(1) and (2) of the Criminal Procedure Code when the appellant was arraigned in Court on 14th August, 2008. The charge was read and explained to the appellant and he pleaded not guilty. Learned Counsel to the respondent anchored his submission at page 6 to page 8 of the respondent’s brief as follows:
“We refer my lords to Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, Section 187(1) of the Criminal Procedure Code Law Cap 42, Laws of Borno State, 1994, the cases of Adeneji vs. The State (supra); Dibie vs. State (supra) also reported in (2007) 10 QCCR 1 at 15 lines 18-25; Chukwu vs. State (supra) and host of other cases few of which are: Nwachukwu vs. State (2008) 6 ACLR 336 at 352-353; Tobby vs. The State (2012) 9 ACLR 426 at pages 442-443 and Mbang vs. The State (2010) 7 NWLR (Pt.1194) 431 at 453. The respondent urges my lords to apply the principles in the cases cited above to this appeal and hold that no lacuna has been shown to exist in the proceedings of the Lower Court as the appellant try frantically to depict in paragraph 4.02 of his brief. The respondent further refer my lords to page 1 lines 1-17 of the additional record of appeal and submitted that:
(I) The charge was actually caused to be read over to the appellant before his plea of “not guilty” was recorded.
(II) One “Kaumi Imam” the Registrar of the Court below, read over to the appellant, the charge in English language and interpreted same to him in Hausa language before his plea was taken.
(III) The language employed in reading the charge to the appellant is English language and interpreted to him in Hausa language – the language the appellant understands, before he made his plea to the charge against him. The principle of law enunciated in the cases of Yerima vs. The State (supra) and Mohammed vs. The State (supra are distinguishable from the facts of this appeal. My lords in the 2 cases cited above, which were decided by my lords in this Honourable Court, some irregularities in the proceedings in the Lower Court of Borno State High Court of Justice and Yobe State High Court of Justice respectively were established in the record of appeal in the 2 cases and my lords nullified the trials and ordered for retrials before other judges in the 2 respective states. In the latter case, the appellant’s further appeal to the Supreme Court was dismissed and the decision of my lords delivered on the 17th day of May, 2010 was affirmed by the apex Court.”
Sections 186 to 187(1) and (2) of the Criminal Procedure Code reads as follows:
” 186 . Where a person is accused of an offence punishable with death, if the accused is not defended by a legal practitioner the Court shall assign a legal practitioner for his defence.
187(1) When the High Court is ready to commence the trial the accused shall appear or be brought before it and the charge shall be read out in Court and explained to him and he shall be asked whether he is guilty or not guilty of the offence or offences charged.
(2) If the accused pleads guilty, the plea shall be recorded and he may in the discretion of the Court be convicted thereon unless the offence charge is punishable with death when the presiding judge shall enter a plea of not guilty on behalf of the accused.”
When the case came up on 14th August, 2008 the entries on the record of appeal at page 7 lines 11 to 22 reads as follows:
“Mr. M. Danlami Counsel for the accused.
A.S. Kaigama:- We apply that charge be read over to the accused person in English language and interprete same in Hausa language which the accused understand very well.
Court:- As the accused whether he understand the charge against him.
Accused:- I understood the charge against me.
Court:- How do you plea to the charge.
Accused:- I pleaded not guilty to the charge.
A.S. Kaigama: – In view of the accused pleaded not guilty to the charge, we shall be asking for a date to enable us call our witnesses in Court.
Mr. M. Danlami – We agreed on 13-10-08 for hearing.
Court: – The case is adjourned to 13-10-08 for hearing.”
Sections 220 and 221(a)-(c) of the Penal Code Law reads as follows:
“220. Whoever causes death:-
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death; or
(b) by doing an act with the knowledge that he is likely by such act to cause death; or
(c) by doing a rash or negligence act, commits the offence of culpable homicide.
221(a) If the act by which the death is caused is done with the intention of causing death; or
(b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.”
The Court was bound to enter a plea of not guilty when the charge was read and explained to the appellant at the time of arraignment. Even if the charge was read but the appellant did not plead or pleaded guilty, it was mandatory for the learned trial Judge to enter a plea of not guilty. Learned Counsel should always examine the sections of penal statutes under which an accused is charged with an offence and seek the correct interpretation or construction rather than relying on previous authorities without taking into consideration the facts and circumstances under consideration. In Odu vs. The State (1965) NMLR 129, the Supreme Court held at page 131 per Brett, JSC that:
“…With respect, we think that the most profitable approach to the interpretation of the Criminal Code is to begin by examining the words of the Code itself, and that decisions on the common law are only of value where the wording of the code is obscure or capable of bearing more than one meaning, when they may be referred to for the purpose of ascertaining the sense in which words are used in the Code”
See also Nwobodo vs. Onoh (1984) NSCC 1 per Bello, JSC (as he then was) at page 14.
There is no merit in issue one. I resolve the issue against the appellant.
ISSUE TWO:
The argument by the learned Counsel on issue two is that since the learned trial Judge had suo motu declined jurisdiction to continue with the trial, there was likelihood of bias when the learned Chief Judge returned the case file and directed the learned trial Judge to continue with the hearing, citing Yakubu vs. The State (2007) 9 NWLR (Pt.1038) 1 at 24; Womiloju vs. Anibire (2010) 10 NWLR (Pt.1203) 545 at 568 and Osayomi & Ors. vs. The State (2007) 1 NWLR (Pt.1015) 353 at 368-369. The trial should be declared a nullity.
Learned Counsel to the respondent referred to Section 72(1) and 73 of the High Court Law of Borno State, 1994 ; Section 138(1) of the Criminal Code Cap 42, Laws of Borno State, 1994 and Zakari vs. State (2010) 5 NSCC 595 at 606 to argue that discretion vests in the learned Chief Judge of the State to assign, re-assign or decline a request by a learned trial Judge to do so. Besides, Pw5 was merely a witness but not a party hence there cannot be imputed any likelihood of bias on the learned trial Judge. Reference was made to Black’s Law Dictionary, 8th edition, page 1554 for the meaning of a “party” and Okelue vs. Medukam (2011) 2 NWLR (Pt.1203) 1 at 176; Kinco Construction Co. Ltd. vs. Veepee Industries Ltd. & Anor. (2005) All FWLR (Pt.264) 816 at 825-826 . Learned Counsel urged that issue two should be resolved against the appellant.
The power conferred on the Chief Judge of Borno State which he may exercise “at any time or stage of the proceedings” to transfer “any cause or matter before a Judge to any other Judge” is provided under Section 72 to 73 of the High Court Law Cap. 63, Laws of Borno State, 1994. The provisions are as follows:
” 72(1) The Chief Judge may at any time or any stage of the proceedings before judgment, and either with or without application from any of the parties thereto, transfer any cause or matter before a Judge to any other Judge.
(2) The power of transfer under this section shall be exercised by means of an order under the hand of the Chief Judge and the seal of the Court, and may apply:-
(a) to any particular cause or matter in dependence either:-
(i) in its entirety; or
(ii) in respect of any part thereof; or
(iii) in respect of any procedure to be taken thereon; or
(b) generally to all such causes or matters as may be described in such order whether future or in dependence at the date of the order.
(3) The power conferred upon the Chief Judge by this section shall be in addition to and not in derogation from any other power or duty to transfer, conferred or imposed upon at a Judge by this Law or by any other written Law.
73. The Chief Judge or judge, as the case may be, may, at any time before final judgment has been given by the Court to which a cause or matter has been transferred, cancel, vary or amend any order made by him under Section 72 or 71 respectively.”
Section 2 of the Law (supra) defines “action” to mean “a civil proceeding commenced by writ or in such other manner as may be prescribed by Rules of Court, but does not include a criminal proceeding.” A “cause” “includes any action, suit or other original proceeding between a plaintiff and defendant, and any criminal proceeding.” A “matter includes every proceeding in Court not in a cause.” The Chief Judge can transfer “any criminal proceedings” pending “before a Judge to any other Judge” under Section 72(1) of the Law (supra). The power to transfer a cause by a High Court Judge is provided under Section 76 and 77 of the Law to wit:
“76. A Judge may at any time or at any stage of the proceedings before final judgment by order under his hand and the seal of the Court transfer any cause or matter before him to
an area Court having jurisdiction in such cause or matter.
77. No appeal shall, subject to the provisions of Section 36; lie from any order of transfer made under Sections 71, 72, 73, 74, or 76.”
As Bulama Katambi Yahi was testifying as Pw5, the learned trial Judge recorded at page 19 lines 8-13 of the printed record as follows:
“There was a wedding ceremony in our village and the accused and one Mustapha Umar to spend the night in house the following morning my son by name Yana came to greet me the said Yana informed me that I have use corpse in from of my compound myself the accused and Mustapha took the corpse and hide it in my house I asked Yana to look after the corpse while I go and report the matter to police.
Court:- I have the opportunity to hear this particular case which happened just a few kilometers from my village Mboa in Chibok Local Government Area. When the incident happened incidentally I was in my village called Mboa. I don’t know this witness but I have heard a lot about him. Having noticed now that was the same case which I have had the opportunity to hear I will at this stage decline sitting over the case there by referred this case to the Chief Judge to be assign to another Judge.”
The learned Chief Judge declined the request to reassign the case to another judge of the Borno State High Court for trial denovo. The learned trial Judge continued with hearing on 14th March, 2012 with the prosecution calling Inspector Clement Ijafiya of the State C.I.D., Maiduguri who testified as Pw6. There is nothing on record to show that when the trial re-commenced, Bulama Katambi Yayi (Pw5) continued his evidence-in-chief and the defence Counsel was afforded the opportunity to cross-examine the witness before the prosecution put Pw6 in the witness-box to testify and to be subjected to cross-examination.
The learned trial Judge lacked the competence to have suo motu transferred the proceedings to the learned Chief Judge for re-assignment to another Judge. The exercise of such power of transfer is restricted to an area Court having jurisdiction in a criminal trial. Only the Chief Judge of the State could have transferred the criminal proceedings before judgment, either with, or without application from any of the parties thereto, to any other Judge. The learned trial Judge exercised
powers not conferred on him by statute hence the learned Chief Judge was right to have remitted the case to him to continue with the proceedings. Grounds 4 and 5 in the Amended Notice of Appeal upon which issue 3.03 is formulated, though argued, are incompetent, and are hereby struck out as offending Section 77 of the High Court Law Cap. 63 (supra).
However, since to err is human, I shall consider this issue on the merit to determine its worthiness or worthlessness.
“Judicial bias” is what is under consideration in this issue. The expression means “A judge’s bias toward one or more of the parties to a case over which the judge presides. Judicial bias is usually not enough to disqualify a judge from presiding over a case unless the judge’s bias is personal or based on some extra-judicial reason.” See Black’s Law Dictionary, 9th edition, page 183. As rightly submitted by the learned Counsel to the respondent, Pw5 was not a party but a witness called by the prosecution. In the process of Pw5’s testimony, the learned trial Judge made the entries on record now the subject of attack on appeal.
The learned trial Judge did not tell the whole world whether Pw5 had private audience with him, or briefed him before he came to testify in his Court. In Olve & Ors. vs. Enenwali & Ors. (1976) 1 NMLR the Supreme Court held at page 49 to 50 per Nasir, JSC (as he then was) as follows:
“Of the cases referred to by Mr. Balogun, the case of Obadara and Ors. vs. The President, Ibadan West District Grade “B” Court (1964) 1 All NLR 336 is in our view relevant in that it has enunciated the correct position of the law. In giving the judgment of the Court, Brett, A-G. C.J.N, stated at page 344 as follows:
“The principle that a judge must be impartial is accepted in the jurisprudence of any civilized country and there are no grounds for holding that in this respect the law of Nigeria differs from the law of England or for hesitating to follow the English decisions. The English decisions were reviewed by the Divisional Court in R. vs. Camborne Justices (1955) 1 Q.B. 41, and we would adopt the following passage from page 51 of the judgment as setting out the law to be applied in Nigeria – Blackburn, J., namely, that to disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject matter of the proceedings, a real likelihood of bias must be shown. This Court is further of opinion that a real likelihood of bias must be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries.”
The decision in R. vs. Camborne Justices, ex p. Pearce (1955) 1 Q.B. 41 (already referred to above) together with other authorities were reviewed by Lord Denning, M.R. in the more recent case of Metropolitan Properties Co. (F.G.C.) Ltd. vs. Lennon (1969) 1 Q.B. 577, 598. After reviewing the facts in the case before him, His Lordship said in respect of the law as follows:
“A man may be disqualified from sitting in a judicial capacity on one or two grounds. First, a “direct pecuniary interest” in the subject matter. Second, “bias” in favour of one side or against the other…
So far as bias is concerned, it was acknowledged that there was no actual bias on the part of Mr. Lennon, and no want of good faith. But it was said that there was, albeit unconsciously, a real likelihood of bias. This is a matter on which the law is not clear; but I start with the oft-repeated saying of Lord Heward, C.J., in R. vs. Sussex Justices, ex p. McCarthy (1924) 1 K.B. 256, 259: ‘It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.’
In R. vs. Barnsley Licensing Justices, ex p. Barnsley and District Licensed Victuallers’ Association (1960) 2 Q.B. 167, 187, Devlin, J., appears to have limited that principle considerably but I would stand by it.
It brings home this point: in considering whether there was a real likelihood of bias, the Court does not look at the mind of the Chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact he would, or did, favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand; see R. vs. Huggins (1895) 1 Q.B. 563 and R. vs. Sunderland Justices (1901) 2 K.B. 357 at C.A. per Vaughan Williams, L.J. Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough: see R. vs. Camborne Justices, ex p. Pearce (1955) 1 Q.B. 41 and R. vs. Nailsworth Licensing Justices, ex p. Bird (1953) 2 All E.R. 652, D.C. There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘the judge was biased.'”
Again in Deduwa & Ors. vs. Okorodudu & Ors. (1976) 1 NMLR 236, Alexander, C.J.N. held at page 245 to 246 as follows:
“The principles to be applied in these circumstances have been stated many times in a number of dicta. In R. vs. Rand (1866)
L.R. 1 C.P. 230, Blackburn, J., said at page 232:
“There is no doubt that any direct pecuniary interest however small in the subject matter of inquiry does disqualify a person from acting as a Judge in the matter.”
In the Queen vs. McKenzie (1892) 2 Q.B. 519 it was contended that a conviction by justices for an offence against Section 7 of the Conspiracy and Protection of Property Act, 1875 should be quashed on the ground that three of the convicting justices were disqualified by reason of “interest” and “bias”. The facts were that the prosecutor was the local agent of a shipping federation, whilst the justices were shareholders members of the federation. It was admitted that the justices had no pecuniary interest in the matter. The Court held further that the justices’ so-called “interest” was too indirect to sustain an allegation of pecuniary interest or bias on their part.”
After summarizing the facts of the case, his Lordship concluded at page 246 to 247 of the judgment as follows:
“It is of course, beyond question that the High Court at which the learned judge presided is a Court established by law and constituted in such a manner as to secure its independence and impartiality. The question to be answered and decided in this con is therefore, what is a “fair hearing”. A fair hearing must, of course, be a hearing that does not contravene the principles of natural justice. Evershed, M.R., said in Abbot vs. Sullivan (1952) 1 K.B. 189, 195: “The principles of natural justices are easy to proclaim, but their precise extent is far less easy to define.” However, the two essential elements of natural justice with which we are concerned in this appeal are that:
(1) No man shall be judge in his own cause; and
(2) Both sides shall be heard, or audi alterem partem.
As regards the first principle, the truism that, “Judges, like Caesar’s wife, should be above suspicion” was given due recognition in the dictum of Brown, L.J., in Leeson vs. General Council of Medical Education (1890) 43 Ch.D. 366, 385. We have already dismissed the argument that the learned judge had a legal “interest” which disqualified him from hearing the action however, the examination of the allegation of “interest” or “bias” or real likelihood of bias on the part of the trial Judge in the conduct of the proceedings before him goes much further than this. Although the smallest pecuniary interest will disqualify a Judge, there are other grounds based on public policy on which bias or the real likelihood of bias may disqualify a Judge. Lush, J., said in Serjeant vs. Dale (1877) 2 Q.B.D. 558, 567:
“The law, in laying down this strict rule, has regard not so much perhaps to the motive which might be supposed to bias the Judge as to the susceptibilities of the litigant parties. One important object, at all events, is to clear away everything which might engender suspicion and distrust of tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security.”
Again, in Metropolitan Properties vs. Lennon (1969) 1 Q.B. 577, Lord Denning, M.R. said at page 599:
“In considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact, favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then, he not sit. And if he does sit, his decision cannot stand….. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough…
There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘the judge was biased.”
I do not see the likelihood of bias been attributed to the learned trial Judge capable of upturning his decision on appeal simply because he was scared of Pw5 and like Pontus Pilate, sought to wash his hands off, and transfer his judicial duty to the Chief Judge of Borno State to be assigned to another learned Judge of the High Court. The learned Chief Judge was right in refusing the request to assign the case to another Judge for trial denovo. That would have caused grave injustice to the speedy trial and disposal of the proceedings. In Senator Adesanya vs. The President, Federal Republic of Nigeria (2001) FWLR (Pt.46) 8159, Fatayi-Williams, CJN, in a case founded on locus standi, held at page 586 paragraph “A” of the judgment as follows:
“….I take significant cognizance of the fact that Nigeria is a developing country with a multi-ethnic society and a written Federal Constitution, where rumour-mongering is the pastime of the market places and the construction sites…”
When the killing of a person in a village or town occurs, it is expected that before the killer is known, the “Amebos” of the famous soap opera like in the Village Headmaster, would be spreading rumours here and there, near and far. A “rumour” is “a piece of information, or a story, that people talk about, but that may not be true.” A “rumour-monger” is “a person who spreads rumours.” See Oxford Advanced Learner’s Dictionary, 8th edition, page 1296. There is no harm in hearing or refusing to hear rumours or rumour-mongers. Rumour-mongers are in every society or community. A Judge cannot be prevented or hindered, like any other member of a community or society, to hear or listen to rumours or rumours-mongers. The issues is how far is his judicial responsibility of hearing and determining causes in his Court affected by such rumours or rumour-mongers is what is in issue. No one can stop the birds flying in the sky. But one can stop them from resting on one’s head. So, no one can stop hearing rumours but a Judge can stop being influenced by rumours or being intimidated by men and women in society such as Pw5.
A one time Governor of a State in Nigeria was over-heard to say, “I do not only hear or listen to rumours but I act on them.” But that should not be so with judicial officers whose judicial oath is couched as follows: “..I will discharge my duties, and perform my functions honestly, to the best of my ability and faithfully in accordance with the Constitution of the Federal Republic of Nigeria and the law; that I will abide by the Code of Conduct contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria; that I will not allow my personal interest to influence my official decisions; that I will preserve, protect and defend the Constitution of the Federal Republic of Nigeria. So help me God.”
Judges read newspapers or published magazines. They listen to the radio and watch the television if time permits. They hear events as presented by the media before such causes and matters, civil or criminal, are brought to the law Courts. At times such cases are assigned to them for hearing and determination. What is of importance is to examine the Constitution and the law, discharge judicial functions and duties as best they can, without fear or without allowing personal interests to influence their decisions. They do this successfully with the help of God, the foundation of justice. At the stage the learned trial Judge suo motu remitted the case to the learned Chief Judge of Borno State to re-assign to another Judge, the prosecution had called Pw1-4 who testified, were cross-examined and re-examined. Pw5 was still testifying under examination in-chief. Pw6 was yet to testify. The implication is that if the learned Chief Judge had acceded to the learned trial Judge’s request, the Judge to whom the case would be transferred would start the hearing denovo. Meanwhile, the appellant would continue to languish in prison, awaiting to endure prolonged incarceration. But assuming every learned trial Judge to whom the case had been assigned declined jurisdiction for the same reason, which judicial officer in the Borno State judiciary would hear and determine the fate of the appellant? There will be none. I do not see any element of judicial bias in the circumstances of this appeal. I resolve issue two against the appellant.
ISSUES THREE AND FOUR:
The argument on issues three and four is whether in view of the evidence adduced in the Court below, the learned trial Judge should not have considered self defence put up by the appellant in Exhibits “A1”-“A3” and “C1”-“C2”? Besides, did the prosecution prove beyond reasonable doubt that it was the appellant that stabbed the deceased to death and no other person? Learned Counsel relied on Uwaekughinya vs. The State (2005) 21 NSCQR 570 at 584; Edibo vs. The State (2007) 13 NWLR (Pt.1057) 306; Ikuepenikan vs. State (2011) 1 NWLR (Pt.1229) 449 at 478;
Adeyefa vs. The State (2013) 11 NWLR (Pt.1364) 47 at 71 to argue that no matter how stupid the defence may be, once it is established that there was a fight and defence is raised in the extra-judicial statements of the accused or in the oral hearing at the trial, the prosecution had not proved the offence charged beyond reasonable doubt. The following authorities were cited in argument: Obi vs. State (2013) 15 NWLR (Pt.1346) 68 at 87; Abirijon vs. State (2013) 13 NWLR (Pt.1372) 619 at 630; Agboola vs. State (2013) 11 NWLR (Pt.1366) 619 at 646. In the absence of direct oral evidence as to the stabbing of the deceased to death, learned Counsel urged that issues 3 and 4 be resolved in favour of the appellant.
The learned Counsel to the respondent argued that conviction can be secured on the extra-judicial statements of the appellant even if they had been retracted at the hearing of the case in the Lower Court. Neither self defence nor provocation was proved at the trial by the appellant. Learned Counsel urged that issues three and four should be resolved against the appellant.
From the totality of the evidence adduced in the Court below, none of the six prosecution witnesses saw the appellant and the deceased fight at the wedding ceremony. None gave evidence as to having witnessed where, when, or how a fight ensued, nor who first attacked another, and with what weapon, which resulted into the death of the deceased. None could testify that the appellant was the last to be seen with the deceased, so it might be inferred that he had the last opportunity to stab him to death. See Ismail vs. The State (2011) 7 MJSC 28; Jua vs. The State (2010) 2 MJSC 152; Adeniyi vs. The State (2011) 13 NWLR (Pt.730) 375; Adepetu vs. The State (1988) SCNJ 83; Shehu vs. The State (2010) 2-3 SC (Pt.1) 158 and Mustapha Mohammed & Ors. vs. The State (2007) 30 NSCQR 364.
Out of the many people that attended the wedding none was called to testify that it was during the merrymaking that a fight ensued that resulted into the appellant stabbing the deceased to death. The oral testimony of Pw1-Pw6 was hearsay upon hearsay. Each witness testified that another witness told him it was the appellant that killed the deceased with a knife (Exhibit “D”). Sections 125 and 126 of the Evidence Act, 2011 provides as follows:
“125. All facts, except the contents of documents, may be proved by oral evidence.
126. Subject to the provisions of Part III oral evidence must in all cases whatever, be direct –
(a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact.”
Pw1 gave evidence that the scene of crime was “in Korandi Village” (page 9 lines 16). But the charge is that the stabbing took place at “Abaderi village of Damboa Local Government Area of Borno State.” Under cross-examination, Pw1 testified that the corpse was recovered at “Gomdi” from where it was taken to Damboa General Hospital. (See page 11 lines 9-10). At page 12 lines 7-9 of the printed record Pw1 again testified under cross-examination that, “The deceased was found about half kilometer away from Kondi Village and not where the incident actually took place.” Yet this is the policeman who investigated the crime, went to the scene, recovered the corpse and took it to the General Hospital, Damboa Local Government Area for postmortem. Pw1’s evidence is inconsistent and self contradictory. Pw3 testified that the marriage ceremony held “at Abasekari Village” contrary to the charge. See page
15 lines 7-9 of the record. The same Pw3 gave evidence that the appellant and Pw5 “carried the corpse of the deceased and hide him in the bush” without naming the location. See page 15 lines 9-10. That when they learnt of the incident, the matter was reported to the police at Damboa “who went to the scene” and removed the corpse for burial. See page 15 lines 10-13. The “scene” was not named. The same witness testified that, “The accused killed the deceased and it was Bulama Katanbi who hide the corpse in the bush…?He was killed on Friday and he the Head ward of Akatambi showed us the corpse at 12noon we buried at the outskirt of Akatambi Village.” (See page 16 lines 3-9). But Pw3 never testified he was an eye witness to the appellant stabbing the deceased on that unfateful night.
Pw4 testified that the marriage ceremony took place at “Abakarkami or Abakatabari village” (See page 17 lines 2). That?the corpse was hidden in the bush by Pw5 (See page 17 lines 4-7). The question is: Is Abaderi village named in the charge the same as Abakarkani or Abakatabari village? There is no evidence. Where was the corpse found by the police and removed for burial?
Which bush and where? There is no answer. The medical doctor (Pw2) testified that the corpse was brought to him at the General Hospital Damboa where he examined it. But Pw3’s testimony is that “The policemen went to the scene the or (sic) where the corpse was hidden with a doctor. The doctor examines the corpse at the scene and then authorize the relation to bury the corpse.” (See page 17 lines 7 to 10). This contradicts materially with Pw2’s evidence.
Pw4’s testimony at page 17 lines 17 to page 18 lines 1-2 of the record is as follows:
“PW4: I did not follow the police to the scene of the crime but I joined them at the scene the same day. I did not see the deceased where he was lying in the bush it was when the police return to the station that was when I was informed that the doctor examine the corpse at the scene of the crime.”
So, where did the doctor examine the corpse – at the General Hospital, Damboa or in the bush where the corpse was retrieved? If the investigating police officer (Pw1) who retrieved the corpse testified that the postmortem was carried out at the General Hospital, Damboa, and this tarries with the evidence of the Medical Doctor (Pw2), but this is in material conflict with Pw3 and Pw4’s evidence that the examination was in the bush where the corpse was found, I am of the humble opinion that the inconsistencies in the evidence of Pw1, Pw2, Pw3 and Pw4 on where the postmortem was carried out is material and needed explanation. See Boy Muka vs. The State (1976) 9-10 SC 305; Onugbogu vs. The State (1974) 9 SC 1; Ateji vs. The State (1976) 2 SC 79 and Jizurumba vs. The State (1976) NMLR 303.
The further question is: Which Medical Doctor performed the postmortem at the General Hospital, Damboa or in the bush? Certainly it cannot be Pw2. Was a post-mortem or autopsy examination really carried out on the deceased, and by whom? There is no credible evidence.
Pw4 testified that, “…I was informed that the incident took place near one house but I did not know the owner of the house..” (See page 18 lines 5-7). This contradicts the evidence of Pw5 that the corpse was discovered in the “following morning” “…in front of my compound myself the accused and Mustapha took the corpse and hide it in my house. I asked Yana to look after the corpse while I go and report the matter to police.”
(Page 19 lines 8-13). If Mustapha Umar and the accused spent the night in Pw5’s house (page 19 lines 8-13), where did the deceased?sleep that night that his corpse was found in front of Pw5’s house in the morning by Yana whom Pw5 called “my son” (See page 19 lines 10-13)? There is no answer.
The medical Doctor (Pw2) gave evidence he saw “2 stab wounds on the right side of the abdomen of the body of the deceased” (page 12 lines 19). This was on 3rd March, 2008 at Damboa General Hospital when he examined the corpse. (Page 13 lines 1-4). But Pw3 testified that, “we saw 2 stab wounds at the chest and back of the deceased Akyari Ashaik.” (page 15 lines 15). How could Pw2 and Pw3 be describing stab wounds on different parts of the body of the same victim? The evidence is too materially and self contradictory. The credibility of Pw2 and Pw3 became an issue for determination. Who actually identified the corpse to Pw2 to enable him examine the corpse is also shrouded in mystery. At page 12 lines 19 to page 13 lines 1-2 of the printed record, the Pw2 testified as follows:
“..The police gave me the name of the deceased as Shari Ashaik. The relatives of the deceased also gave me the name of the deceased as Shari Ashaik after examining, I made a report.”
The charge named the deceased as “Chari Ashiekh”. Is “Shari Ashaik” one and the same as “Shari Ashaik”? There is no explanation. Pw1 and Pw6 are the two police officers that investigated the crime. Pw1 carried out investigation at Damboa Divisional Police Headquarters before the appellant was transferred to State C.I.D. Headquarters in Maiduguri from where Pw6 took over investigation. Pw1 testified at page 9 lines 16-19 of the printed record as follows:
“…We carried the corpse to General Hospital, Damboa for Otopbsy (sic), after medical examination and the photograph of the deceased taken the corpse was released to his relatives for burial on the same date…”
The investigating police officer (Pw1) did not testify that he identified the deceased to Pw2 or that he gave him the name before Pw2 examined the corpse. Pw6 did not testify that he was among the policemen who took the corpse to the General Hospital, Damboa, nor did he identify the deceased to Pw2 to enable him carry out examination. The name of the relative that identified the corpse to Pw2 is not in evidence.
On 20th April, 2009 Mr. A.S. Kaigoma State Counsel appeared for the prosecution. Mr. K.J. Ntafa, Esq. of learned Counsel represented the appellant. The prosecution sought to tender the medical report in evidence. The following entries appear in the printed record at page 13 lines 10-18:
Court:- Any objection.
MR. K.J. Ntafa:- The report of the medical practitioner coroner ordinance dated 3rd March, 2008 or one Yari Asheik is hereby admitted in evidence marked exhibits.
Court: Any cross-examination.
Mr. K.J. Ntafa: We have no objection.
Court: The report of the medical practitioner coroner ordinance dated 3rd March, 2008 of one Yari Asheik is hereby admitted in evidence marked Exhibit “B”.
Is Yari Asheik on whom is the report was marked Exhibit “B” the same as “Chari Ashiek” in the charge? There is no answer. No foundation was laid by the prosecution to establish Pw2’s qualification whether as a coroner, pathologist, medical doctor or registered medical practitioner capable of examining any corpse. The word “doctor,” and the expression “medical doctor” or “medical officer” are not defined in the British Medical Association Illustrated Medical Dictionary, 2nd edition, 2009. A “Coroner” is defined in the dictionary at page 147 as, “A public officer appointed to inquire into the cause of death when it is unknown, or when it is suspected or known to result from unnatural causes. The Coroner holds an inquest, sometimes before a jury.”
The authors define “pathology” and a “pathologist” at page 436 as, “The study of disease – its causes, mechanisms, and effects on the body. Pathologists conduct autopsies to determine causes of death and to determine the effects that a disease or a treatment has had.” The phrase “Medical Doctor” or “medical officer” are also not defined in the Illustrated Medical Dictionary, 2nd edition, 2009. The British Medical Association describes the dictionary as, “The only full-colour illustrated dictionary that provides authoritative yet accessible definitions of every important term” at the back cover. This has legal implications.
The expressions “Medical Doctor” or “medical officer” are not important medical expression. They are vague, though in common day usage. A “pathologist” but not a “medical doctor” or “medical officer” ought to be qualified to perform autopsy or post-mortem examination on corpses. “Autopsy” is defined as “A postmortem examination of the body, including the internal organs, usually to determine the cause of death.” (p.61).
“Postmortem examination” means “An alternative term for an autopsy.” (p.458). John Afakirya Manza (Pw2), gave evidence that, “On the 3rd March, 2008 I was on duty at the General Hospital, Damboa while on duty a dead body was brought to Damboa General Hospital by some police men asked me to examine the dead body. I examined the dead body I discovered that the body was started decomposing. I also saw 2 stab wounds on the right side of the abdomen of the deceased…” (See page 12 lines 14-19). There is nothing on record to show that the witness examined the internal organs of the decomposing corpse in the manner of a “pathologist” or a “coroner” would have done. The witness never gave evidence as to the cause of death. The evidence of Pw2 is as worthless as any thing can be worthless and is lacking in substance and credibility. In Rago Kura vs. Commissioner of Police (1976) NNLR 148 the Medical Doctor that performed the autopsy or postmortem simply gave his qualification as “B.M. BCH.” The
Court held these alphabets to be meaningless. Pw2 never told the Court below the kind of examination he carried out on the deceased.
An “examination” simply means “the act of looking at or considering something very carefully.” It could be just “a close look at something or somebody, especially to see if there is anything wrong or to find the cause of a problem.” See Oxford Advanced Learner’s Dictionary, 8th edition, page 505.
It is not enough for a medical doctor to testify that he examined the corpse without showing how the examination was carried out. There should be evidence how the examination was carried out to arrive at the cause of death of the person for which the accused is standing trial.
In Frank Onyenankeya vs. The State (1964) NMLR 34, Pw1, a girl of six years saw the appellant hit the deceased on the head with an iron rod as they quarreled. But the girl could not tell the day or the month this happened. The doctor who performed the postmortem (Pw2) testified there was no external evidence of violence. Pw2 told the Court he could not say what was the cause of the death. Other prosecution witnesses did not help matters. At page 35 of the judgment, Taylor, JSC held that:
“…The point that arose during the hearing of the appeal was whether there was any evidence as to the cause of death, or to put it in another way, whether it was shown that the act of the appellant caused the death of the deceased.”
At page 36 his Lordship held as follows:
“It is good law that medical evidence is not always essential though desirable to prove the cause of death, but the evidence must in any case be such as to (sic) how that the death of the deceased was caused by the act of the appellant.”
Where a Medical Practitioner performed the postmortem examination testifies as a witness, the most crucial question is: Was the cause of death proved? In Rex vs. William Oledima (1940) 6 WACA 202 the Medical Practitioner performed the postmortem examination on the deceased testified as follows:
“On 11th April, 1940 I conducted a postmortem on Joseph Anyanwu identified to me by Ekechuku – Death had taken place about 48 hours before – The right leg, thigh and hip bigger circumference than left crackling with emphysema – in right buttock – wound 1%” long caused by sharp instrument – out of the wound came blackish fluid – I incised it and saw 3″ showed lesser decay but were also emphysematous – it was a typical advanced infection of gas gangrene – The cause of death was infections due to gas gangrene – An injection could cause the infection if the needle were dirty or germs in the injection or germs on the skin introduced into the body by injection.”
Nevertheless, the West African Court of Appeal held at page 202 as follows:
“Now to establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death of the deceased, but that it did. In this case the doctor’s evidence is merely to the effect that the act of the appellant could have caused Joseph Anyanwu’s death. The possibility that the gangrenous condition was due to causes other than the injection is not excluded. Consequently the evidence is not sufficient to prove the cause of death or to support the conviction. The appeal is allowed, the conviction and sentence are quashed and it is directed that a judgment and verdict of acquittal be entered and that the appellant be discharged.”
However, Sections 149 to 150A of the Laws of Borno State, 1994 provides as follows:
“149(1) The evidence of any medical officer or registered medical practitioner taken on oath before a Court in the presence of the accused may be read in evidence in any trial or other proceeding under the Criminal Procedure Code although he is not called as a witness.
(2) The Court may if it thinks fit summon such medical officer or registered medical practitioner to appear before it as a witness.
(3)(a) A written report by any medical officer or registered medical practitioner after he has examined any person or the body of any person may at the discretion of the Court be admitted in evidence for the purpose of proving the nature of any injuries received by such person or, where such person has died, the nature of the injuries received by such person and, where possible, the physical cause of his death;
(b) On the admission of such report the same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the Court; and
(c) If by reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medical officer or registered medical practitioner shall attend and give evidence in person the Court shall summon such medical officer or registered medical practitioner to appear as a witness.
250(1) Any document purporting to be a report under the hand of the Accountant-General or Director of Audit or any expert in bacteriology, physiology, biology, pathology, chemistry or other branch of scientific knowledge in the service of any Government of Nigerian upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Criminal Procedure Code may be used as evidence in any inquiry, trial or other proceeding under this Criminal Procedure Code.
(2) The Court may if it appears desirable for the ends of justice summon any person making a report under Subsection (1) to give evidence in person.
250A(1) The Court shall, in the absence of evidence to the contrary, presume that the signature to any report or document referred to in Section 249 or Section 250 is genuine and that the person signing it held the office or the qualifications which he professed at the time when he signed it.
(2) Where any such report or document is intended to be produced by either party to the proceedings, a copy thereof shall be sent to the other party at least ten clear days before the day appointed for the hearing and, if it is not so sent, the Court may, if it thinks fit, adjourn the hearing on such terms as it may think proper.”
The phrase “any medical officer” or “registered medical practitioner,” or “pathologist” may be grouped or classified as “medical examiner.” The expression means “A public official who investigates deaths, conducts autopsies, and helps the state prosecute homicide cases. Medical examiners have replaced coroners in many states – sometimes shortened to examiner.” See Black’s Law Dictionary, 9th edition, page 1071.
Where the evidence or report is from “any medical doctor,” a “registered medical practitioner,” “coroner” or “pathologist” the medical witness or the report, if tendered, should describe the nature of any external or internal injuries received by the deceased and where possible, the physical cause of death.
The next is for the learned trial Judge to form an opinion on the evidence of the medical witness or the report tendered to prove the cause of death. Section 68(1)(2) and 71 of the Evidence Act, 2011 provides as follows:
“68(1) When the Court has to form an opinion upon a point of ….. science…. the opinions upon that point of persons specially skilled in such science are admissible.
(2) Persons so specially skilled as mentioned in Subsection (1) of this section are called experts. ………..
71. Facts not otherwise relevant are relevant if they support or are inconsistent with the opinions of experts, when such opinions are admissible.”
Therefore, it is not enough to admit the evidence of a “medical doctor”, “a registered medical practitioner”, a “coroner” or “pathologist”, etc, as provided under Sections 149-250A of the Criminal Procedure Code. For the Court to form an opinion on their evidence where they testified as a witness or their report was tendered and admitted as an exhibit, the prosecution should have led evidence to show that the evidence or report is from “persons specially skilled in such science” as to come within the definition of an “expert” under Section 68(1) and (2) and 71 of the Evidence Act, 2011. An “expert” is a person who is “specially skilled” as mentioned in Subsection (1) of Section 68 and 71 of theEvidence Act, 2011. Then would his evidence or report be relevant. The opinion would be relevant if it “supports” or is “inconsistent” with the facts established at the trial.
On the issue of proper identification of the corpse for postmortem or autopsy, I shall refer to Msughando vs. The State (1980) 2 NCR 23 where Ademola, JCA held at page 31 lines 38 to page 32 lines 1-34 as follows:
“Learned Counsel for the appellant however submitted that the person named on the medical report as having identified the body to the doctor who performed the post-mortem examination was not called to give evidence to connect the medical report with the person named as the deceased. This ground of appeal, to my mind is a good one. The learned trial Judge himself in the course of his judgment had this to say:
“The post-mortem examination was performed on May 20th, 1976 and the report showed that one Adamu Salihu identified the corpse of the deceased. It is strange that the prosecution did not think it is important to call this Adamu Salihu. I must however mention here that the defence did not question the identity of the deceased and I further hold that the identity of the victim allegedly shot by the first accused is not in dispute in view of the testimonies of the first and third witnesses for the prosecution.”
With great respect to the learned trial Judge he seems to have overlook one important fact: that the plea of not guilty recorded by him on behalf of the appellant means that every allegation of fact contained in the charge before the Court is denied by the appellant including, for the purpose of this case, the identity and the name of the person allegedly killed by him. The fact that the first three prosecution witnesses named the person killed as Kaduna Sule in their testimony does not necessarily mean that the medical officer who made the medical report performed a post-mortem examination on Kaduna Sule. The medical officer does not know the person upon whom he has performed a post-mortem examination. The mere fact that he inserted the name of a person i.e. Kaduna Sule, on the medical report is a piece of hearsay evidence and that hearsay evidence cannot be admissible. The witness who supplied the information as to the identity of the deceased to the medical officer in the making of the medical report must of necessity be called. To the extent that this has not been done the report is not a strong piece of evidence against the appellant, whatever it may contain. It does not establish beyond any shadow of doubt the identity of the person allegedly shot by the appellant. In my view, this ground of appeal must succeed.”
Again in Adi vs. State (1980) 2 NCR 323, Ademola, JCA held at page 330 lines 30 to page 332 lines 1-11 as follows:
“Finally on the minor points, I agree entirely with the submission of Mr. Brown Peterside that the report on the deceased does not establish the identity of the person said to have suffered the injuries alleged therein with the person alleged in the charge to be the victim of the appellant’s act. The reasons for this are well stated in his argument. At the risk of repetition: he submitted that no doctor was called who made the report and the report did not say who identified the body of the deceased to the maker of the report and no such person who identified the body gave evidence. This is a serious gap in the case of the prosecution to prove its case beyond reasonable doubt; see the judgment of this Court in Msughando vs. State (1980) 2
NCLR 23. These minor points are enough to dispose of this appeal but I would like to go further. I turn now to the major argument in this case. Both Messrs. Brown Peterside and Omokri are right, even if it is conceded that the appellant in this appeal stabbed the deceased, in saying that the decision of this Court in Yaji vs. State (8) covers this case. Mr. Brown Peterside’s submission shows a clear understanding of what this Court said in Yaji’s case. The judge must, as a primary duty, determine who is aggressor in the life and death struggle the parties are engaged in; if the appellant is the aggressor in the act, then he loses his right of self-defence, if his action to his victim falls into the category of being punitive.”
Let us examine the extra-judicial judgments the prosecution heavily relied upon to secure conviction and sentence to death of the appellant. Exhibits “A1”-“A3” are the alleged confessional statements the appellant volunteered to Pw1 on 3rd March, 2008. The appellant admits he hails from Abaderi village in Damboa Local Government Area of Borno State. At page two of the said confessional statement marked Exhibit “A2” to “A3”, appellant is
credited to have confessed to Pw1 as follows:
“…I of the above named and address elect to state as follows: That I was born at Abaderi village in Damboa Local Government Area about 47 years ago. My father died about ten years ago, and my widow mother is still alive. Presently I am residing with my family in Chibok town. I am married with four children. I attended Mbowa Kura Primary School in Chibok Local Government Area from 1976 to 1982. I later proceeded to former Teachers College, Damboa in the year 1982 but I could not be able to complete the school. I left the school in the year 1984 and engaged myself in farming. I know one Chari Asheikh “M” of Kondi village, Damboa Local Government Area. I could remember that in the month of November?to December, 2007, we Chari Asheikh and others put their cows in my guinea corn farm. I got misunderstanding with him. Since then I did not met with him on the 29th February, 2008. I was invited for wedding ceremony of one Ali Abana “M” of Abaderi village. During the occasion I was drunk and highly intoxicated. And I met with the said Chari Asheikh. I don’t know the time we started fighting with him, but what I can remember is the time I got beat on my neck. And also I don’t know the time that I stabbed him with knife because I was intoxicated deeply. After the incident I went and slept in the house of Bulama Katambi Yahi ‘M’, Abaderi village. Later in the morning of 1st March, 2008 we saw the dead body of Chari Asheik lying in front of house of Bulama Katambi Yahi closer to the venue of the occasion. I told the Bulama Katambi to report the incident to Lawan but he told us that he should hide the corpse first in his house. We took the corpse and hided it in his house from there I left to my house in Chibok town. On that day of incident myself and the deceased were all drunk and deeply intoxicated. And the knife found in the body of deceased is my knife. Really I am the person that killed him, but I was under intoxicated by then. I did not kill him intentionally. I do it because of the intoxication. But I need leniency and forgiveness. That is all.”
On 12th March, 2008 the appellant is credited with further volunteering Exhibit “C1”-“C2” to Pw6 when the case was transferred from Damboa Divisional Police Station to the State C.I.D. Headquarters in Maiduguri, Borno State.
The statement reads as follows:
“On Friday being 29th February, 2008, I was invited from Chibok to attend a wedding ceremony of one Ali Abana as the Secretary of the accession attached to the bride father one Abana Buja. On that day, there was dancing, eating and drinking of alcohol. By then it was night and I don’t have time with me. On my way to Bulama Katambi house so that I can pass the night, the deceased attacked me and hit me with a something at my neck. I don’t know what type of object he used to hit because it was night by then and I fell down. I quickly wake up and removed my knife and stabbed the Fulani Man. I don’t know how many times I stabbed him. When I saw that he had fall down as a result of the knife and I was still holding the knife in my hand I then throw the knife there and I moved straight to Bulama Katambi house. When I was about to enter his house, he asked me what happened? Because my shirt was turned by the deceased, I told him that it was drunk, I am not in my sense. From there he told me that I should follow him to pass the night in his house. Infact, Bulama Katambi did not know whether I fight with some body that day, even my self I don’t know because I was drunk. The following day in the morning at about 0600hr, I was inside the Bulama house, when the son of Bulama by name Yana Bulama told us that he had seen dead body lying outside. So all of us came out and saw the deceased lying dead from there Bulama Katambi suggested that we should take the corpse to his house and hide the deceased to avoid attacked from the family members of the deceased. I even assisted the said Bulama Katambi by taking the deceased to his house. It was around 1100hrs in the morning before I left Abanteker village to (our) my house at Chibok on 2nd March, 2008 at about 1700hrs, I was in my house when Bulama Katambi came with police and arrested me. Bulama Katambi told me that I fought that day and killed the deceased found at the frontage of his house. I did not argue him and told the police, that I fought that day but I don’t know because I was drunk. The police removed knife which used to kill the deceased which I told them that the knife belong to me and I am the person that killed the deceased. To conclude my statement, I am the person that killed the deceased because I previous misunderstanding between I
and the deceased because of my farm product which he used to destroyed with his cows. And he was the first person that attacked me before I used my knife to stab the deceased even though I was drunk that day. That is all I have to say.”
The extra-judicial statement of 12th March, 2008 (Exhibit “C1”-“C3”) merely amplified 3rd March, 2008 (Exhibit “A1”-“A3”) to state that it was the deceased that first attacked the appellant on the neck which took place in the night. The appellant in retaliation stabbed the deceased with a knife. On 12th March, 2008 the appellant only gave further explanation that, “the deceased attacked me and hit me with a something at my neck. I don’t know what type of object he used to hit because it was night by then and I fell down. I quickly wake up and removed my knife and stabbed the Fulani Man. I don’t know how many times I stabbed him. When I saw that he had fall down as a result of the knife and I was still holding the knife in my hand I then throw the knife there and I moved straight to Bulama Katambi house” Was the stabbing intentional, in self-defence or justifiable in law? Who was the aggressor?
Section 28 of the Evidence Act,2011 defines “a confession” as “an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. ”
An “admission” is “a statement, oral or documentary, or conduct which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and in the circumstances hereafter mentioned in the Act.” See Section 20 of the Act (supra). But Section 27 of the Evidence Act (supra) makes it clear that “Admissions are not conclusive proof of the matters admitted but they may operate as estoppel under part …”
When a person confesses to the commission of a crime and gives reasons for doing so, it is incumbent on the trial Court to examine all the reasons to see whether, taking into consideration all the circumstances that led to the commission of the crime, the reasons are justifiable. For example, in this case, did the appellant act in the face of slight or grave provocation, or in self-defence so as to protect himself against violence to his body using such force as is reasonably necessary to protect himself from unlawful violence to his person or not, or to protect
unlawful violence to his dignity? If he did, this is permitted under Section 33(1)(2)(a)-(c) and 34(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. The learned trial Judge was more pre-occupied with the fact that the appellant confessed to stabbing the deceased to death at a time he was drunk with alcohol during or after merrymaking at the wedding without taking into consideration that the deceased was the aggressor. That he was the first to attack the appellant on the neck at night; that the deceased was also drunk at the wedding party before the fight ensued. The appellant had to fight his aggressor in retaliation using his knife as the murder weapon.
?There is no law which forbides right-thinking members of society, particularly farmers from carrying knives at any moment of their lives. What members of the community in which the appellant lives does, matters. In Rex vs. Amodu Adamu (1944) 10 WACA 161 the deceased and the appellant were all armed. The deceased had a dane gun, a matchet and a hunting lamp. After the killing the appellant’s house was searched and the deceased’s gun and matchet were found with blood stains. On the body of the appellant were recently unexplained injuries. The fight took place between 9:00pm and thereafter. There was no eye witness to the fight except the evidence of the deceased’s son that soon after his deceased father left the house in search of the thief who had stolen his money, he had gunshots. The learned trial Judge disbelieved the appellant, convicted and sentenced him to death. The West African Court of Appeal concurred with the finding that it was the appellant that killed the deceased. Nevertheless, their Lordships in discharging and acquitting the appellant held at page 162 to 163 of the judgment as follows:
“We are of opinion, however, that in the judgment of the learned trial Judge there is grave misdirection by non-direction. It is clear that the Judge assumed throughout that the killing was murder, and overlooked the fact that the onus was on the prosecution to prove that a murder had been committed, in other words that the killing amounted to murder. The onus was not upon the appellant to prove that no crime has been committed, even though such proof rested upon facts pecuniary within his own knowledge. (Woomington vs. Director Public
Prosecution (1935) A.C. 462; Attygalle & Anor. vs. The King (1936) A.C. 338; Seneviratne vs. R. (1936) 3 All E.R. 36). In most cases where a man is found brutally killed by the road side there is a strong presumption that he has been murdered but here the circumstances were unusual and that presumption did not arise. The deceased went out doubly armed and obviously prepared to use his arms against a supposed thief. The evidence points to his having actually fired his gun and used his matchet. There is no evidence whatever that the appellant was in fact the culprit who stole the deceased’s clock and money. No motive is apparent for the appellant to have made an attack upon the deceased.
So far as there can be any presumption one way or the other to what brought about the clash between the two men, it seems to be that the deceased must have been the aggressor.
In these circumstances, it was, in our view, the duty of the Judge to direct himself to consider very carefully what the killing amounted to, whether murder, manslaughter or justifiable homicide, and in considering the last possibility to bear in mind that, even though there was an intention
to kill, the killing might be justifiable if it was the only way to avoid being killed.
In view of the learned trial Judge’s omission to direct himself properly upon this point and to direct his mind to the possible alternatives to murder we are of opinion that the conviction for murder cannot be allowed to stand, and Counsel for the Crown in this Court has not sought to uphold the conviction.
Nor has Counsel asked us to substitute a conviction for manslaughter, nevertheless we have carefully considered whether it is not our duty to substitute a verdict of guilty of manslaughter; but in order to do so we should have to be sure that the learned trial Judge was satisfied of facts which proved that the killing was manslaughter. We cannot be sure of that, more especially as, in our view, it is at least as likely as not that the killing was in self-defence. For although the severity and number of wounds on the deceased’s body point to great ferocity on the part of the killer, experience shows that once two primitive Africans start a fight to the death with matchets the conqueror is apt to make a thorough job of it, and this does not necessarily show that he was not
bound to kill in order to save his own life. For these reasons the appeal is allowed, the conviction and sentence are quashed, and it is directed that a judgment and verdict of acquittal be entered. The appellant is discharged.”
In Kavuwa Takida vs. The State (1969) 1 All NLR 270 the Supreme Court held at page 273-274 per Coker, Ag. C.J.F., that:
“No Court is bound to speculate on what possible defences can be open to a person accused 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 that defence by the legal terminology ascribed to it by lawyers. In the instant case both in his defence before the Court and the statement he made to the police the appellant alleged a fight and the learned trial Judge should have dealt with that issue.”
Belief or disbelief of an appellant or a witness becomes immaterial when there is only one version of evidence relating to a material fact, in this case, the events that led the appellant to stab the deceased to death in the course of the fight which establishes
self-defence. See Modupe vs. The State (1988) 9 SCNJ 1; Okosi vs. State (1989) 2 SCNJ 183 and Akwa vs. Commissioner of Police (1977) NNLR 98 at 103 .
In Saidu vs. The State (1982) 1 NCLR 49, Obaseki, JSC held at page 62 as follows:
“Where a mixed statement, namely, one containing confessions and self-exculpatory parts, is under consideration by a jury in a case where the person charged has not given evidence, in deciding where the truth lies the jury has to consider the whole statement, both the incriminating part and the excuses or explanations; see R. vs. Duncan (1981) 73 Cr. App. R.359; (1981) Crim. L.R. 560. The appellant’s statement in this case is a mixed statement, one part containing what has been described as a confession, although the victim was not identified as the deceased, and the other part exculpatory in that the stabbing of one of the several unknown assailants was done in a drinking-bar and in self-defence or under provocation.”
The learned trial Judge did not take into consideration the fact that the combined effect of Exhibits “A1”-“A3” and “C1”-“C2” established self-defence and this exculpated the appellant, the deceased being aggressor.
Section 33(1)-2(a), (b) to (c) of the Constitution of the Federal Republic of Nigeria, 1999 as amended reads as follows:
“33(1) Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a Court in respect of a Criminal offence of which he has been found guilty in Nigeria.
(2) A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law of such force as is reasonably necessary:-
(a) for the defence of any person from unlawful violence or for the defence of property;
?(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
?(c) for the purpose of suppressing a riot, insurrection or mutiny.”
The appellant and the deceased come within the expression “Every person has a right to life,” under Section 33(1) of the Constitution (supra). It is alleged that the appellant stabbed the deceased to death thereby taking away his life. The first duty of the prosecution is to show that the deceased was intentionally
deprived of his life by the appellant by the use of such force as not reasonably permitted by law; that the weapon or force used by the appellant, taking into consideration the entire circumstances of the established facts was unreasonable before a trial Court could have found him guilty and sentenced him to death. Where is the evidence that the appellant intentionally deprived the deceased of his life for which he was tried and found guilty by the learned trial Judge in the Court below? I see none.
Self defence of any person from unlawful violence where the force employed or used is not to such extent and circumstances as are reasonably necessary is permitted under Section 33(1)(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999.
Moreover, Section 34(1) of the Constitution (supra) further provides that, “Every individual is entitled to respect for the dignity of his person”
?The word “dignity” means “1. The state of being noble; the state of being dignified. 2. An elevated title or position. 3. A person holding an elevated title; a dignitary. 4. A right to hold a title of nobility, which may be hereditary or for life.” See Black’s Law
Dictionary (supra) page 522.
In Exhibit “A1”-“A3” of 3rd March, 2008 the appellant stated he was married with four children. That he dropped out from Damboa Teachers College in 1984 and has since engaged in farming. In Exhibit “C1”-“C2” of 12th March, 2008 the appellant stated that he was invited to attend the wedding ceremony by one Ali Abana as Secretary on the occasion. All these facts remained unchallenged in the Court below. I am of the firm belief that if the appellant was not a man of dignity in the society or community, he could not have been invited to the wedding in such a capacity. For the deceased to have attacked the appellant, a man of dignity in society as described, and at night, deserved retaliatory measures or response from the appellant. Obviously, a reasonable man of appellant’s standing in society and at the wedding ceremony would have been provoked and acted in self-defence as the extra-judicial statements shows.
In Rex vs. Rose (1884) 15 Cox C.C. 550, Lopez, J., (as he then was) held as follows:
“Homicide is excusable if a person takes away the life of another in defending himself, if the fatal blow which takes away life is necessary for
his preservation. The law says not only in self-defence such as I have described may homicide be excusable, but also it may be excusable if the fatal blow inflicted was necessary for the preservation of life. In the case of parent and child, if the parent has reason to believe that the life of a child is in imminent danger by reason of an assault by another person, and that the only possible, fair, and reasonable means of saving the child’s life is by doing something which will cause the death of that person, the law excuses that act. It is the same of a child with regard to a parent; it is the same in the case of a husband and wife. Therefore, I propose to lay the law before you in this form: If you think, having regard to the evidence, and drawing fair and proper inferences from it, that the prisoner at the bar acted without vindictive feeling towards his father when he fired the shot, if you think that at the time he fired that shot he honestly believed, and had reasonable grounds for the belief, that his mother’s life was in imminent peril, and that the fatal shot which he fired was absolutely necessary for the preservation of her life, then he ought to be
excused, and the law will excuse him, from the consequences of the homicide. If however, on the other hand, you cannot come to that conclusion, if you think, and think without any reasonable doubt, that it is not a fair inference to be drawn from the evidence, but are clearly of opinion that he acted vindictively, and had not such a belief as I have described to you, or had not reasonable grounds for such a belief, then you must find him guilty of murder.”
Pw5 whom the learned trial Judge dreaded and sought to decline from continuing to hear the case could surely have been a co-accused or an accessory after the fact to the commission of the crime for which the appellant stood trial in the Lower Court. Pw5 is a prosecution witness with a likely interest to serve. The learned trial Judge ought to have regarded the evidence of this witness with great caution. See Idahosa & Ors. vs. The Queen (1965) NMLR 85 at 87-88. In Omisade vs. Queen (1964) NMLR 67 though a treasonable felony trial, the Supreme Court held at page 75 that:
“Extra-judicial confessions can serve as auxiliary evidence or corroboration of accomplice evidence, and no more.”
Strictly speaking
the entire evidence of Pw1-Pw6 as to who stabbed to death the deceased for which the appellant stood trial in the Lower Court is hearsay upon hearsay evidence. In Subramaniam vs. Public Prosecutor (1956) 1 WLR 965 the Privy Council held at page 969 thus:
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”
Apart from the fact that Shari Shaik “M” of Kombi Village was stabbed to death on or about 29th day of February, 2008 with a knife on the chest and abdomen, if the evidence of these prosecution witnesses is expunged, the only evidence remaining will be the unchallenged extra-judicial statements of the appellant, namely, Exhibits “A1”-“A3” and “C1”-“C2”. But when the facts in these exhibits are carefully considered, it can be seen that self-defence favoured the discharge and acquittal of the appellant.
A trial Judge can
convict on only the extra-judicial statement of an accused, confessional in nature and character, even if retracted at the trial.
When an accused denies making a statement to the police which the prosecution seeks to tender to form part of its case, that in law constitutes “retraction.” The word is defined as a “1. Statement saying that something you previously said or wrote is not true 2. the act of pulling something back (of retracting it)..” or it is “1. To say that something you have said earlier is not true or correct or that you did not mean it… 2…” And to refuse to keep an agreement, a promise, etc” is to “retract” from that which the person said or wrote before. See Oxford Advanced Learner’s Dictionary, 8th edition, page 1263. See also Agboola vs. The State (2013) 11 NWLR (Pt.1366) 619 at 646; Eghboghonome vs. State (2001) 2 ACLR 262 at 305; Hassan vs. State (2012) 9 ACLR 1 at 17-18 and Ejinima vs. State (2012) 9 ACLR 24 at 86-87.
Taking into consideration Exhibit “A1” to “A3” and “C1” to “C2” I am of the firm and calm view that this appeal has merit and is allowed. The trial and conviction of the appellant by the Lower Court is set aside. The
appellant is discharged and acquitted. The appellant shall be released from prison custody forthwith.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had the singular opportunity of reading in draft the judgment delivered by my learned brother, JOSEPH TINE TUR, JCA. I am in total agreement with the reasonings and conclusion contained therein. My lord has had dealt with all the issues of law brilliantly leaving no space for further elucidation. I can only adopt his reasonings and conclusions as mine, and in consequence allow the appeal being meritorious. The judgment of the Lower Court delivered on the 29th of June, 2012 is hereby set aside. I abide by the orders in the lead judgment.
RIDWAN MAIWADA ABDULLAHI, J.C.A.:I had the privilege of reading in draft the judgment just delivered by my learned brother, JOSEPH TINE TUR, JCA who painstakingly digest, considered and judiciously determined the entire issues in this appeal. I am very much in agreement with his reasoning and conclusion and have nothing useful to add. In line with his conclusion, I am also of the view that the appeal
has merit and therefore allowed same. The trial and conviction of the appellant by the Lower Court is set aside and he is therefore discharged and acquitted. The appellant shall be released from the prison custody forthwith.
Appearances
A. A. Airadion, Esq. For Appellant
AND
B. Adamu (DDCL) with him, A.S. Kaigamo (SSC- Ministry of Justice, Borno State) For Respondent
