BAWA v. STATE (2020)

BAWA v. STATE

(2020)LCN/14792(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Thursday, November 19, 2020

CA/S/19C/2020

RATIO

EVIDENCE: MEANING AND NATURE OF EVALUATION OF EVIDENCE

OPUTA, JSC (OBM) in the case of ONWUKA vs. EDIALA (1989) 1 NWLR (PT. 96) 182 at 208 -209 adequately shed light on the expression: “Evaluation of evidence” when he said, thus:
“What does evaluation of evidence consist of? What is the meaning of the expression evaluation? To evaluate simply means to give value to; to ascertain the amount; to find numerical expression for etc… Now talking of scale naturally leads one to the famous dictum of FATAYI-WILLIAMS, JSC (as he then was) in A. R. MOGAJI & ORS vs. MADAM RABIATU ODOFIN & ORS (1978) 4 SC 91 at 93: ‘when an appellant complains that a case is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which has been given to the totality of the evidence before him, (the trial judge)…. Therefore in deciding whether certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge after a summary of all the facts, must put the two sets of facts in an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it…’ The scale though imaginary is still the scale of justice, and the scale of truth. Such a scale will automatically repel and expel any and all false evidence. What ought to go into that imaginary scale should therefore be no other than credible evidence. What is therefore necessary in deciding what goes into the imaginary scale is the value, credibility and quality as well as the probative essence of the evidence…Even in Mogaji’s case…this Court held at p. 94:- ‘Therefore in determining which is heavier, the judge will naturally have regard to the following: (a) whether the evidence is admissible; (b) whether it is relevant; (c) whether it is credible; (d) whether it is conclusive; and (e) whether it is more probable than that given by the other party.”
Perhaps, the important thing to note at this stage is that in evaluating evidence, the basic difference in the approach to evaluation of evidence in civil cases as in the case of ONWUKA vs. EDIALA (Supra) and criminal cases as in the instant Appeal is that in civil cases, the question is as to weight of evidence. The usual inquiry is which of the two pieces of evidence on an issue out-weighs the other. To ascertain this, they are put on an imaginary scale and weighed together to find out which of them preponderates. But that is not case in criminal cases, where the issue of preponderance of evidence does not really arise. The question in criminal cases is whether there is evidence of such a quality on every material ingredient or issue in the case that it ought to be believed. If there is and it is believed by the trial Judge, that is the end of the matter, provided of course that it is manifest that he has given due consideration to the evidence by or on behalf of the defense. The judge needs not weigh them on a balance.
It is important to note that the purpose of going this far in analyzing the question as to what amounts to an evaluation of evidence is to make assurance doubly sure in, at least ensuring that the records of this case are adequately scrutinized vis a vis the analysis made by the Court below against the backdrop of the allegations of Appellant’s Counsel who has contended that findings were made by the Court below not backed by the records. In any case, the term: “evaluation” involves a reasoned belief of the evidence of one of the contending parties and the disbelief of the other or a reasoned preference of one version to the other. It is the Court of trial that has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of the weight of the evidence in question and then make logical and consequential findings of facts. See STEPHEN vs. STATE (1986) 5 NWLR (PT. 46) 978 at 1005. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other. See AKINTOLA v. ADEGBITE (2007) ALL FWLR (PT. 372) 1891 at 1898. PER OHO, J.C.A.

EVIDENCE: WHEN IS A PIECE OF EVIDENCE DULY EVALUATED

The position at law is that a piece of evidence is duly evaluated when appraised in the light of the contrary evidence adduced. PER OHO, J.C.A.

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

UMARU BAWA APPELANT(S)

And

THE STATE RESPONDENT(S)

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Kebbi State, Birnin-Kebbi Judicial Division in Suit No. KB/HC/2c/2016 Coram: ISMA’IL HARUNA BASHIR, J delivered on the 3rd April, 2018 at the Court (hereinafter referred to as the “Court below”) convicting the Appellant for the offence of Culpable Homicide contrary to Section 221 (b) of the Penal Code. The Judgment of the High Court can be found at pages 50 – 63 of the Record of Appeal.

The facts of the case is that on the 22nd day of June, 2014 at about 09:00 hours at Geza Village – Bagudo Local Government Area of Kebbi State, the Appellant was said to have caused the death of one Ibrahim Yahaya by hitting him with a piece of wood on the head thereby inflicting injuries, which later caused the death of the deceased and thereby committed an offence punishable under Section 221 (b) of the Penal Code. The Appellant was arraigned on the 30-03-2016; the charge was read to him and he pleaded not guilty (Page 18 of the Record). Hearing commenced on the 01-02-2017 with the prosecution opening its case. The prosecution in proof of its case led the PW1 – PW6 in evidence.

The Appellant testified for himself and called no witnesses on the 06-07-2017 as DW1; the testimony of the Appellant as an accused person is at pages 34-35 of the record. At the conclusion of trial, the learned trial Court in its judgment on the 3-4-2018 convicted the Appellant and sentenced him to death for the offence of Culpable Homicide punishable with death contrary to Section 221 (b) of the Penal Code (See pages 50-63 of the records).

Dissatisfied with the judgment of the Court below, the Appellant has appealed to this Court vide his Notice of Appeal filed on the 26th day of June, 2018. There is only one ground of Appeal.

ISSUE FOR DETERMINATION:
The learned Appellant’s Counsel nominated only an issue for the determination of this Appeal, thus:
“Whether the improper evaluation of the testimony of the witness by the trial Judge amounted to perversity and a miscarriage of Justice?”

On the part of the Respondent, only an issue as well was nominated thus:
“Whether considering the entire evidence adduced at the trial, the

lower Court was right in convicting the Appellant for the offence of culpable homicide punishable with death?”

By carefully interrogating the issues nominated for the determination of this Appeal, by both sides of the divide it is glaring that the sole issue nominated by the Appellant is rather presumptuous and a conclusion, which tends to suggest that learned Appellant’s Counsel has on his own adjudged the Court below of the shortcoming of “improper evaluation of the testimony of the witness” and that this amounted to perversity and a miscarriage of Justice. The last time this Court checked, I think it is the place of this Court sitting as an Appellate Court to adjudge whether or not a Court below evaluated the testimonies of the feuding parties properly or not and not that of Counsel after painstakingly subjecting the records of Appeal to proper scrutiny. For this and also the major reason that the Appellant’s issue is as a result, inelegantly drafted, this Court shall determine this Appeal on the basis of the issue nominated by the Respondent.

The Appellant’s brief of argument

dated 16-7-2020 and settled by CHRIS OHENE ESQ., was filed on the 22-7-2020 while the Respondent’s brief of argument dated 21-9-2020 and filed on the 23-9-2020 was settled by OSITA MBAMALU ESQ. On the 4-11-2020, at the hearing of this Appeal, learned Counsel for the parties adopted the briefs of arguments of the parties and urged the Court to resolve the Appeal in favour of their clients.

SUBMISSIONS OF COUNSEL:
APPELLANT:
APPELLANT’S SOLE ISSUE:
“Whether the improper evaluation of the testimony of the witness by the trial Judge amounted to perversity and a miscarriage of Justice?”

The contention of learned Counsel in arguing this issue is that the Court below failed to discharge its duty of properly evaluating the testimony of the Appellant at the Court below. To this end, Counsel drew attention to the trial judge’s observations at Pages 58-59, 62 of the Record and submitted that even the testimony of the eye witness (the PW4) and the excerpts of the judgment of the Court, which Counsel reproduced in his brief of argument, are to a large extent irreconcilable and not supported by the record as nothing in

the testimonies of any of the witnesses or exhibits tendered before the Court suggests or states as such.

It was further contended that by the statement of the Appellant contained at pages 67-74 of the Record and admitted as Exhibits B-B1 has a manifest disconnect with the trial Judges evaluation and Counsel wondered where the trial Judge manufactured the imputations that are not contained in the Records. According to learned Appellant’s Counsel the trial Judge failed to properly evaluate the testimony of the Appellant and his confessional statement and instead dwelt heavily on the feeble defense of the Appellant Counsel’s final address. Counsel submitted that the evidence before the trial Court established clearly that the deceased verbally insulted the Appellant, slapped him and inflicted injury on his ear and that the sequence of unbroken assault meted on the Appellant by the deceased contained in the testimony of the Appellant during trial was severe enough to have actuated the provocation and the attack on the deceased by the Appellant.

Learned Counsel also argued that the trial Judge failed to adequately evaluate the Appellant’s testimony

before making its findings that the Appellant inflicted more harm than necessary, which cannot be measured or compared with the minor injury to the ear in a previous fight. Counsel cited the cases of CCB (NIG.) PLC vs. OKPALA (1997) 8 NWLR (PT. 518) 673; NWOSU vs. STATE (1986) 4 NWLR (PT 35) 348 AT 359 in support of his contentions.

As far as Counsel is concerned in evaluation of evidence, it is the duty of the trial Court to examine the totality of the case and not pick pockets here and there to puncture or destroy the case of any of the parties as in the instant case. He argued in this connection that the evidence in chief of the accused (Appellant) contained in pages 34-35 of the Record and his confessional statement admitted as Exhibits B-B1 has established the following facts;
1. That the deceased actuated the provoked assault on himself by verbally attacking and insulting the Appellant.
2. That the deceased inflicted injury on the ear of the Appellant, which made him unconscious and unable to have self-control of his action.
3. That there was no interlude in the action and inaction between the Appellant and the deceased that culminated in the provoked assault.

Learned Counsel further contended that the testimony and evidence adduced during the trial are in disagreement with the findings of the trial Judge at page 62 of the Record where he held thus;
“Afterwards accused receded went back home, removed his dress find the portion of the deceased and set to pin him down, it should be remembered that there was no second fight. No scuffle deceased was attacked after separation and was caught unaware when he was passing his normal business. The mere fact that the accused person overheard him saying that he beat him up and he cannot tolerate boys like him. This is not vitriolic diatribe as to attack the deceased with a deadly weapon twice on the neck at his back, not in the course of the fight. No threat of danger, no sudden and grave provocation in the light of all said, the defense of provocation also does not avail the accused person, it is only a weeping principle of filibuster.”

The submission of learned Counsel here is that the chain of events chronicled above, which formed the fulcrum of the trial Judges findings, conviction and sentence of the Appellant does not

represent the evidence on Record before the trial Court and contained in the Record of Appeal. The further submission of Counsel is that the Appellant admitted in his confessional statement and his testimony during trial that he used a wooden plank to hit the deceased on the head after the deceased inflicted injury on his ear that made him unconscious. The question posed by Counsel thereafter is whether other defenses open to the Appellant were properly considered in the trial at the Court below?

In his answer, Counsel said that the question can only be rendered in the negative as no evidence was led by the prosecution to discredit the testimony of the Appellant, which is consistent with his confessional statement (Exhibits B-B1). Counsel cited the case of ABDULLAHI vs. STATE (2008)17 NWLR AT 203, where the apex Court per OGBUAGU, JSC admonished trial Courts to consider all defenses open to the accused in the course of trial no matter how weak or stupid the defense may be. According to Counsel, in a murder trial all the available defense whether raised or not must be considered for the defense.

Learned Counsel also contended that the Appellant

raised the defense of provocation in his confessional statements (Exhibits B-B1) that the deceased inflicted injury on his ear which the trial Judge also alluded to at page 62 of the Record, but that the trial Judge came to the conclusion that the degree of pain or hurt felt by the Appellant is incommensurate to his instantaneous revenge by using a wood plank on the deceased’s head and neck and that this calls for questioning.

Counsel argued that the action of the Appellant was not a pre-meditated act, but a spontaneous reaction resulting from deprivation of the power of self-control at the heat of passion before the passion had time to cool by using a weapon of opportunity (wooden plank) on the deceased. See the case of ISA KASSIM vs. STATE (2018) 4 NWLR (PT. 1608) AT 57-58 PARAGRAPH G – A on self defense. Counsel brought to the fore the fact that the Extra Judicial statement of PW4 was not tendered and admitted in evidence during trial and as such it was wrong for the trial Judge to have made references to it in his evaluation. He said that a Court is not allowed to speculate or conjuncture upon any possibilities as the duty of the Court is to

decide between the parties on the basis of the evidence before it. Furthermore, Counsel said that no reference was made to the confessional statements (Exhibits B-B1) of the Appellant which was critical for the just determination of the case.

Learned Counsel also insisted in his arguments that the records show that the deceased used abusive words on the Appellant because he knew he was stronger, older and bigger; that the deceased slapped the Appellant and inflicted injury on his ear when a scuffle ensued between them (Pages 34-35 of the Record) which made the Appellant to lose self-control and acted in the heat of passion before there was time for his passion to cool. For this reason, Counsel argued that the action of the Appellant was not premeditated as the wooden plank used on the deceased was picked from the floor at the spur of the moment without a second thought as a weapon of opportunity. Counsel therefore submitted that Exhibits B-B1 and the Appellant’s oral testimony before the Court are in all material respect the same and ought to have been given proper appraisal to sustain the defense of provocation of the Appellant.

Still on the confessional statement of the Appellant (Exhibits B-B1) and his testimony in chief, Counsel contended that these were not discredited and that the effect of this is that since the facts are unchallenged and uncontroverted they are taken as admitted and credible to be acted upon by the Court. See the case of EMEKA OKO vs. STATE (2018) 1 NWLR (PT. 1600) where the apex Court per EKO, JSC: had this to say on the subject:
“Where on a murder charge there is evidence on which the Court can find that the person charged was provoked, whether by things done or by things said or both, to loss his self-control, the question whether the provocation was enough to make a reasonable man do what he did is one of facts. In determining the question, the material facts to consider are facts of what the deceased did or said that caused the defendant to be so provoked to do what he did resulting in the death of the deceased. The test is objective, and it is whether a reasonable man in the circumstance would have been provoked. LORD DIPLOCK used this ‘reasonable man” test in DPP vs. CAMPLIN (1987) 67 CR APP R14, and I think it is reasonable to adopt it and I hereby adopt it for this case.”

To further show the proportionality of the provoked assault on the deceased, Counsel contended that it is imperative to look at the Record (pages 31 and 32) which showed that the death of the deceased was not instantaneous but days after the incident. He argued that the death of the deceased many days after ought to have created a doubt in the mind of the trial Judge as to whether the effect of the provoked assault is the probable cause of the death of the deceased and Counsel urged this Court to so hold.

Learned Counsel further argued that the Record speaks for itself; that the sequence of the action of the deceased will certainly put him in harm’s way as the Appellant acted in the heat of passion and there is no evidence to show that the act of retaliation was done after there had been sufficient time for passion to cool down. Counsel urged this Court to allow the appeal and set aside the Judgment of the trial Court delivered on 3rd April, 2018 which convicted and sentenced the Appellant to death by hanging.

RESPONDENT:
RESPONDENT’S SOLE ISSUE:
“Whether considering the entire evidence adduced at the

trial, the lower Court was right in convicting the Appellant for the offence of culpable homicide punishable with death?”

In arguing this issue, Counsel prefaced his arguments on the fact that for a Court to justifiably convict for the offence of culpable homicide, the law requires that the prosecution must prove beyond reasonable doubt that;
1. The death of a human being actually has actually occurred;
2. Such death has been caused by the accused person or persons;
3. The act was done with the intention of causing death, or it was done with the intention of causing such bodily injury as the accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which act was intended to cause. See OMINI vs. STATE (1999) 9 SC 1, (1999) 12 NWLR (PT. 630) 123; GIRA vs. THE STATE (1996) 4 NWLR (PT. 443) 375 and THE STATE vs. FATAI AZEEZ & ORS (2008) LPELR 3215 (SC).

Given the above settled position of the law, Counsel contended that the trial Court had to ensure that the above ingredients enumerated by the apex Court in THE STATE vs. FATAI AZEEZ (Supra) are present before it

convicted the Appellant for the offence of culpable homicide under Section 221(b) of the Penal Code. It was therefore submitted that the trial Court diligently ensured the presence of all the three (3) ingredients of the offence before convicting the Appellant.

The Court was told that at the trial six (6) witnesses testified for the prosecution. See Pgs 23 – 32 of the Records, while the Appellant testified on his own behalf without calling any witnesses – See Pages 34 – 35 of the Records. Out of the six witnesses called by the prosecution, Counsel said that only the PW4 Auwwal Dame was an eye witness to what transpired between the Appellant and the deceased leading to the death of the deceased. It was the submission of Counsel that a careful consideration of the evidence of the witnesses including that of the accused person clearly proved the presence of the three (3) ingredients of the offence committed.

According to learned Counsel, a review of the evidence of the PW4, Muh’d Auwwal Dame and the PW5 Shakarau Hussaini, brothers of the deceased show that the death of a human being that is, the deceased Ibrahim Yahaya occurred.

The submission of learned Counsel in addition is that none of the testimonies of PW3 and PW5 were shaken or discredited on the issue of the death of the deceased and that the trial Court was therefore within its right when it acted on these un-contradicted pieces of evidence of PW4 and PW5 to the effect that Ibrahim Yahaya died. See OKUPE vs. IFEMEMBI (1974) 3 SC 97 and UBN LTD vs. OGBOH (1995) 2 NWLR (PT. 380) 647.

That will do for the first ingredient of the offence. However, as it has to do with the second ingredient, dealing with the question of whether such death was caused by the Appellant, to demonstrate that the trial Court was on sound footing when it found as a fact that the death of Ibrahim Yahaya was caused by the Appellant, Counsel pointed to the un-contradicted evidence of the only eye witness who saw what actually transpired between the Appellant and the deceased; that the evidence of the PW4, Muh’d Auwwal Dame, was that the Appellant hit the deceased two times on the head while the deceased was “backing” him in the following words:
“…the accused said they should fight deceased said he was

not his mate, accused boxed the deceased, I told him to stop that the deceased left the scene Accused followed him, got wood and hit the deceased when he was backing him on the head when he was about to fell down he hit him again on the head, I saw them from where I was as it was not far from me, I rushed to the scene and accused wanted to escape I wrestled him, he fell down got hold of him, and the wood took him to the village head the deceased was also taken to the village head.” Pg 29 – 31 of the Records.

According to learned Counsel, the above evidence of the PW4, which was neither contradicted nor challenged under cross examination was corroborated by the evidence of the Appellant when he admitted in his examination in Chief (referring to the deceased) that;
“… I wanted to avenge he was stronger than me he dodged and beat me on my ear and I fell down, I was unconscious, it was in front of a shop, I removed it and beat him, he fell down, people rushed to the scene they watching up and me too, we were separated, when I was about to go, his relation came they said I will not go anywhere till Ibrahim (deceased) recovered we were

taken to the village head, from there we were handed over to the police, police took us to Bagudo town directly to the General Hospital I was given medicine my scar stitched and taken to C.I.D office I was taken to might Bagudo later I was told he died. Pg 34 – 35 of the Records.”

The contention of learned Counsel is that from the evidence of the PW4 and the Appellant, what was clear was the fact that the Appellant hit the deceased with a piece wood causing him to fall down unconscious and that this fact was also confirmed by Exhibits B – B1, which are the statements the Appellant made to the police when he was arrested. The argument of learned Counsel is that after the attack, the deceased was taken to the hospital where he died. Counsel further argued that from the chain of events narrated above, it was the act of hitting the deceased on the head with a piece of wood by the Appellant that caused his death and that the trial Court was therefore obligated to act on this unchallenged evidence. See the case of G. S. PASCUTTO (TRADING AS COM-EST) vs. ADECENTRO NIG. LTD (1997) 11 NWLR (PT 529) 467 on the effect of an unchallenged evidence produced before Court.

In respect of the third ingredient of the offence, that the Accused knew or had reason to believe that death would be the probable and not only, the likely consequence of his act, Counsel submitted that in a murder charge, the prosecution is required to prove beyond doubt not only that the act of the accused person could have caused the death of the deceased but that it actually did. See AUDU vs. STATE (2003) 7 NWLR (PT. 820) 516 and the earlier Supreme Court decision in UGURU vs. STATE (2002) 9 NWLR (PT. 771) 90. And that in every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved. See OFORLETE vs. STATE (2000) 12 NWLR (PT. 631) 415.

Learned Counsel also contended that from the facts of this case as borne out of the records, the Appellant knew or had reason to believe that death would be the probable result from his action against the deceased. Once again Counsel referred to the evidence of the sole eye witness, the PW4 when he said:
“Accused said they should fight, deceased said he was not his mate, accused boxed the

deceased, I told him to stop that the deceased left the scene, Accused followed, got wood and hit the decease when he was backing him on the head, when he was about to fall down, he hit him again on the head, I saw them from where I was as it was not far from me.”

This Court was also informed that under cross-examination the Appellant confirmed that the deceased became unconscious when he (the Appellant) hit him on the head with the stick and that it is also in evidence that the deceased never recovered from his state of unconsciousness until he died after being taken to the General Hospital Bagudo and the Federal Medical Centre Birnin Kebbi. It was further contended that the fact that the deceased was unconscious after the attack by the Appellant was also confirmed by the PW3, when he narrated how the deceased and the accused were brought to their police station by the village head of Geza, one Haruna Hakimi.

As far as Counsel was concerned the above sequence of events together with the timeline were graphically reconfirmed by the PW5, Shakarau Hussaini, in his testimony at page 31 of the Records. It was therefore submitted that from the sequence

of events leading from the attack of the deceased, his becoming unconscious and hospitalization are a continuous unbroken chain of events culminating to his death and that the attack by the Appellant being the action that set off the chain of events that ended with the death of the deceased. Counsel stated that the deceased never recovered consciousness from the moment of attack till his death a few days later. See AUDU vs. STATE (2003) 7 NWLR (PT. 820) 516 where this Court held that a man is presumed to intend the natural consequence of his act and that where by an unlawful act, he causes another person grievous bodily harm leading to the death of the person, he is presumed to have intended to kill that person and would be guilty of murder irrespective of his intention.

As it relates to the Appellant’s contention that the trial Court improperly evaluated the evidence placed before it in arriving at its decision, especially as it relates to the submission of Appellant’s Counsel contention that the Court had made findings not supported by the record, Counsel submitted that this contention of the Appellant is without basis given the contents of

the evidence of the PW4, the Appellant himself and Exhibits A and B-B1. See Pgs 30, 34 – 35, and 67 – 70 of the Records. The argument of learned Counsel, based on the decision of the apex Court in OMOTOLA vs. STATE (2009) 4 NCC is that there is no universal method on writing judgment as each Court has its own style, which oftentimes it deploys in conveying its own decisions. According to Counsel, the Appellant cannot therefore condemn the judgment of the Court below because it was not presented in any of the format he expected. Moreover, Counsel argued that the records now before this Court does not show, as contended by the Appellant; that there is a manifest disconnect between it and the evaluation of the evidence by the trial Court; neither are the findings and conclusions of the learned trial judge to a large extent unsupported by the records.

The position of Counsel is that the evaluation of the evidence by the trial Court as reproduced on Pgs 11 – 12 of the Appellant’s Brief (also found on Pgs 58 – 59 and 62 of the Records) show a clear consistent analysis of the facts placed on record before the trial Court.

Learned also contended that the accused is 25 years old (See Pg 34 of Records) and the trial Court had the opportunity of seeing him physically to determine that apart from his age, he was truly in his prime. Again, he said that the Court below also had the opportunity of seeing the murder weapon, that is the piece of wood (Exhibit A) to determine the nature and what damage it was capable of inflicting on the head of the deceased. Counsel submitted that it is the responsibility of a trial Court who saw a witness to form and come away with an impression; an advantage conferred on him by seeing the witness. See the case of MUSA vs. THE STATE NCC VOL.5 213 (SC. 323/2006 OF 3/07/2009).

Learned Respondent’s Counsel also submitted that the crucial finding of the trial judge that the fight had ended when the Appellant hit the deceased on the head with a piece of wood was also confirmed by the Appellant in his statement to the police made on 23/06/2014 – Exhibit B-B1. See Pages 67-70 of the Records. Furthermore, Counsel submitted that during his testimony in Court the Appellant under cross-examination admitted that he hit the deceased with a piece of wood

after the initial scuffle between them and that to him, it was during the second episode that he hit the deceased with a piece of wood.

The further submission of Counsel is that the conclusions and findings made by the trial Court were therefore clearly based on the evidence placed before him and that there was no manifest disconnect between the evidence and the evaluation of same by the trial Court as the Appellant would want this Court to believe.

On the defense of provocation, which ingredients learned Respondent’s Counsel took his time to itemize in its brief of argument, Counsel submitted that the ingredients must all co-exist to ground a successful plea. See IHUEBUKA vs. THE STATE (2000) 2 SCNQR 18. He contended that from the facts of this case, the Appellant cannot successfully plead the defence of provocation and that this was very clear to the trial Court when it evaluated the evidence before it, thus:
“The accused also introduced provocation, the defence is not complete defence but mitigates the offence from the facts evidenced Accused was the aggressor during the first fight but was unable to beat the deceased instead luck

was on the side of the deceased.” See Pg 62 of the Record.

The position of Counsel is that the above finding of fact is in tandem with the evidence of the PW4, the only eye witness when he testified that the:
“Accused said they should fight deceased said he was not his mate accused boxed the deceased I told him to stop that the deceased left the scene Accused followed him…” See Pg 30 of the Records

From the foregoing, the contention of Counsel is that apart from the Appellant being the aggressor, there was also abundant evidence that the force applied by the Appellant was disproportionate to the provocation, if any; and that there was sufficient time for passion to have cooled down between the provocative act and the attack by the Appellant, which was obviously not lost on the trial Court when it found that;
“The accused inflicted more harm than necessary exceedingly inductive and maliciously excessive, it cannot be measured or compared with the minor injury of the ear in a previous fight.” See Pg 62 of the Records.

Attention of this Court was also drawn to the finding of the Court

below when the Court further held that there was time enough for passion to have cooled down between the fight and the attack that led to the death of the decease. In this regard the Court found that;
“Accused receded went back him (home) removed his dress find the position of the deceased and set to pin him down, it should be remembered and noted there was no second fight on scuffle deceased was attacked after separation and was caught unaware when he was passing his normal business.” See Pg. 62 of the Records.

From the foregoing therefore, Counsel submitted that the defence of provocation was not available to the Appellant as his Counsel would want this Court to believe. And that the trial Court was therefore right when it held that;
“In the light of all said, the defence of provocation also does not avail the Accused person, it is only a weeping principle to filibuster.” See Pg 62 of the Records.

Learned Counsel finally urged this Court to dismiss this Appeal and affirm the judgment of the Court below.

RESOLUTION OF APPEAL
The sole issue nominated for the resolution of this Appeal deals with the

vexed question of whether the Court below adequately evaluated the evidence adduced by the Appellant before arriving at the Court’s findings and conclusions, which culminated in the Court’s judgment finding the Appellant guilty of the offence of culpable homicide punishable with death under Section 221 of the Penal Code. OPUTA, JSC (OBM) in the case of ONWUKA vs. EDIALA (1989) 1 NWLR (PT. 96) 182 at 208 -209 adequately shed light on the expression: “Evaluation of evidence” when he said, thus:
“What does evaluation of evidence consist of? What is the meaning of the expression evaluation? To evaluate simply means to give value to; to ascertain the amount; to find numerical expression for etc… Now talking of scale naturally leads one to the famous dictum of FATAYI-WILLIAMS, JSC (as he then was) in A. R. MOGAJI & ORS vs. MADAM RABIATU ODOFIN & ORS (1978) 4 SC 91 at 93: ‘when an appellant complains that a case is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which

has been given to the totality of the evidence before him, (the trial judge)…. Therefore in deciding whether certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge after a summary of all the facts, must put the two sets of facts in an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it…’ The scale though imaginary is still the scale of justice, and the scale of truth. Such a scale will automatically repel and expel any and all false evidence. What ought to go into that imaginary scale should therefore be no other than credible evidence. What is therefore necessary in deciding what goes into the imaginary scale is the value, credibility and quality as well as the probative essence of the evidence…Even in Mogaji’s case…this Court held at p. 94:- ‘Therefore in determining which is heavier, the judge will naturally have regard to the following: (a) whether the

evidence is admissible; (b) whether it is relevant; (c) whether it is credible; (d) whether it is conclusive; and (e) whether it is more probable than that given by the other party.”
Perhaps, the important thing to note at this stage is that in evaluating evidence, the basic difference in the approach to evaluation of evidence in civil cases as in the case of ONWUKA vs. EDIALA (Supra) and criminal cases as in the instant Appeal is that in civil cases, the question is as to weight of evidence. The usual inquiry is which of the two pieces of evidence on an issue out-weighs the other. To ascertain this, they are put on an imaginary scale and weighed together to find out which of them preponderates. But that is not case in criminal cases, where the issue of preponderance of evidence does not really arise. The question in criminal cases is whether there is evidence of such a quality on every material ingredient or issue in the case that it ought to be believed. If there is and it is believed by the trial Judge, that is the end of the matter, provided of course that it is manifest that he has given due consideration to the evidence by or on behalf of the

defense. The judge needs not weigh them on a balance.
It is important to note that the purpose of going this far in analyzing the question as to what amounts to an evaluation of evidence is to make assurance doubly sure in, at least ensuring that the records of this case are adequately scrutinized vis a vis the analysis made by the Court below against the backdrop of the allegations of Appellant’s Counsel who has contended that findings were made by the Court below not backed by the records. In any case, the term: “evaluation” involves a reasoned belief of the evidence of one of the contending parties and the disbelief of the other or a reasoned preference of one version to the other. It is the Court of trial that has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of the weight of the evidence in question and then make logical and consequential findings of facts. See STEPHEN vs. STATE (1986) 5 NWLR (PT. 46) 978 at 1005. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the

other. See AKINTOLA v. ADEGBITE (2007) ALL FWLR (PT. 372) 1891 at 1898. The question to therefore address at this point is whether the Court below in this case made clear its reasons for preferring the evidence of one side to the other in arriving at its findings and conclusions before finding the Appellant guilty of the offence of culpable homicide punishable with death under Section 221 of the Penal Code? In answering this question, it may be important to scrutinize the records;
The learned trial judge of the Court below at pages 58 to 59 had this to say while evaluating the evidence adduced at the Court below against the Appellant, thus:
“First of all, there was a deliberate intent with a deadly weapon accused used at his prime age with all the force you can imagine twice on the head and neck region, confirming itself puts an end to the rough and speculative edges of criminal responsibility in terms of mens rea and actus reus. Moreover, accused himself introduced defense of self-defense, here the accused is admitting the offence of killing the deceased because if he did not do that, the deceased would have killed him being older and

stronger. I therefore find the weapon used, the degree of force used and free sensitive area beaten made me to believe that accused knew that and every reasonable person to know or to have believe death would be the probable consequence and not only the likely consequence of his act.”

There were other pockets of evaluation conducted by the learned trial Judge at page 62 of the record, thus:
“The accused inflicted more harm than necessary exceeding inductive and maliciously excessive. It cannot be measured or compared with minor injury to the ear in a previous fight…The accused person also introduced provocation the defense is not complete defense but mitigates the offence. From the facts evidence accused was the aggressor during the first fight but was not able to beat the deceased instead luck was on the side of the deceased. Afterwards, accused receded, went back home removed his dress find the position of the deceased and set to pin him down, it should be remembered and noted that there was no second fight or scuffle deceased was attacked after separation and was passing his normal business the mare fact that accused person overheard him

saying that he beat him up and he cannot tolerate boys like him. This is no vitriolic diatribe as to attack the deceased with a deadly weapon twice on the neck at his back, not in the course of the fight No threat, No danger, No sudden and grave provocation. In the light of all said, the defense of provocation also does not avail the accused person, it is only a weeping principle to filibuster.”

It is on record in this Appeal that the misgivings held of the lower Court’s evaluation by learned Appellant’s Counsel as recorded here above is Counsel’s contention that the testimony of the sole eye witness (the PW4) and the excerpts of judgment of the Court below are to a large extent irreconcilable and not supported by the record. Again he said that nothing in the testimony of any of the witnesses or exhibits tendered before the Court suggests or states as much as the Court had done in its evaluation. Unfortunately, this Court does not share the same point view with learned Appellant’s Counsel on the issue. Rather what the Court below had presented by way of its analysis and by way of evaluating the evidence adduced show a clear

consistent analysis of the facts placed on record before the trial Court.

One must however, not lose sight of the fact that the learned trial Court had the opportunity of seeing the parties, especially the Appellant as the Accused standing trial before him, their antecedents, and all and physically assessed their ages and physical built to be able to determine the amount of force that was probably deployed in achieving the effect of putting a man of the standing of the deceased to death. In addition, the Court below had the opportunity of seeing the murder weapon that is the piece of wood (Exhibit A) to determine the nature and what injury it was capable of inflicting to the head of the deceased, sufficient to kill him.

The crucial finding of Court below that the fight had ended when the Appellant hit the deceased on the head with a piece of wood was also confirmed by the Appellant in his own statement to the police made on 23-06-2014 – Exhibits B-B1. See Pages 67-70 of the Records. The Appellant under cross examination as borne out by the records admitted that he hit the deceased with a piece of wood after the initial scuffle between

them and that to him, it was during the second episode that he did the deadly blow that caused death. It is clear that the conclusions and findings made by the trial Court were therefore clearly based on the evidence placed before the Court below and I am unable to find any manifest disconnect between the evidence and the evaluation of same by the trial Court. The position at law is that a piece of evidence is duly evaluated when appraised in the light of the contrary evidence adduced. But here is a situation where there is hardly any contrary evidence adduced.

By the honest and even straightforward testimony of the Appellant and the contents of his extra-judicial statement, it was made clear that the Appellant was on a revenge mission when he began by challenging the deceased to a duel, who declined and that as the deceased turned his back on the Appellant to leave the Appellant pounced on him dealing the death blows twice to the deceased’s head:
“… I wanted to avenge he was stronger than me he dodged and beat me on my ear and I fell down, I was unconscious, it was in front of a shop, I removed it and beat him he fell down,

people rushed to the scene they watching up and me too, we were separated when I was about to go his relation came they said I will not go anywhere till Ibrahim (deceased) recovered we were taken to the village head, from there we were handed over to the police, police took us to Bagudo town directly to the General Hospital I was given medicine my scar stitched and taken to C.I.D office I was taken to might Bagudo later I was told he died. Pg 34 – 35 of the Records.”

The defense of provocation of the Appellant is even an afterthought based on the hollowness and puerile illogicality of the arguments marshaled to support it. Here was a situation in which the Appellant after the first fight or so fell unconscious by his own words and showing. However, except if this Court does not know what that means, the Appellant literally passed out although temporarily. For how long he remained unconscious, no one has said.
The Appellant cannot say that by the time he woke up from his state of inactivity or when he regained consciousness enough time to cool off had not taken place. Indeed, it was the evidence of the PW4, who was an eye witness to what

transpired before the attack that further shed light on the events of that fateful day. The said PW4 did not witness the first phase of the fight shortly before the Appellant fell unconscious if not he would have said so. What he witnessed as borne by his evidence was that the Appellant challenged the deceased to a duel and the deceased declined and when the deceased turned his back on him to leave, that was when the Appellant attacked the deceased. This Court cannot accept that there was no interludium between the first and the second fights. In the second, the Appellant was clearly on a revenge mission going by his own words. The defense of provocation cannot therefore find currency before this Court and as rightly observed by the Court below.

In the Appellant’s extra-judicial statement which was tendered without any objections, the events that took place on the fateful day are rather instructive in this case. Again the crucial finding by the Court below, that there was indeed an interregnum between the first and second fights was highlighted in the Appellant’s Exhibits B and B1 at pages 67 to 70 of the printed records, thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“The said Ibrahim Sarka asked me where is the vehicle I answer him I don’t know from their he told I disgurazed my father he past that disgirazed from their I said to him since I told him I don’t know is disgirazed I did later he told me if I am stupid I should wake up from where I sitting he will deal with me from there I wake up where he hold my shirt he pushed me and I also he used his hand and beat my face I fell down over the wake up I went to my house after I came back where we use to stay I met him together with people and he give them story that I should beat small boys, him he pass me he beat timber wood I follow his back and I hit him subsequently he fell down because I hit him back with timber wood I was standing he attempted to hold me I repeated betting him with the said timber wood on his hand that is what I know about that.”
(Underlined, mine for emphasis)

In the final analysis, this Appeal is moribund as it is lacking in merit and it is accordingly dismissed. Consequently, the judgment of the High Court of Kebbi State, Birnin-Kebbi Judicial Division in Suit No: KB/HC/2C/2016 Coram: ISMA’IL HARUNA BASHIR, J delivered on the 3rd April, 2018 is hereby affirmed.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading before now the lead judgment of my learned brother Oho, JCA, just delivered. I fully agree with his reasoning and conclusions that this appeal is devoid of any merit. It is accordingly dismissed by me also. I abide by all the consequential orders of my learned brother.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother FREDERICK O. OHO, JCA. I entirely agree with his reasonings and conclusion that this appeal is moribund as it is lacking in merit. It is liable to be dismissed and I also dismiss the appeal.
I abide by the consequential order in the lead judgment.

Appearances:

CHRIS OHENE ESQ. For Appellant(s)

OSITA MBAMALU ESQ. For Respondent(s)