IBRAHIM ISAH v. THE STATE
(2018)LCN/12151(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of November, 2018
CA/S/115C/2017
RATIO
CRIMINAL LAW: INGREDIENTS OF CULPABLE HOMICIDE
“Now, the ingredients of culpable homicide punishable with death which the prosecution must prove to succeed have been stated times without number to be: viz (i) that the death of a human being took place; (ii) that such death was caused by the accused; (iii) that the act of the accused caused the death with the intention of causing death or that the accused knew that death would be the probable consequence of his act. See MAIYAKI VS THE STATE (2008) 15 NWLR (PT. 1109) 173; MAMMAN VS THE STATE (2015) LPELR 25963 (CA). It is needless to emphasize that all these ingredients must co-exist and each be proved beyond reasonable doubt for the prosecution to secure or sustain a conviction. See the recent decision of the Supreme Court in GALADIMA VS THE STATE (2017) LPELR 41909 (SC) and also ALI VS THE STATE (2015) LPELR 24711 (SC) by the same Court.” PER AMINA AUDI WAMBAI, J.C.A.
CRIMINAL LAW: TO INFER INTENTION TO KILL
“Where therefore the weapon used is lethal in nature, that is deadly, the injury inflicted is severe; and the manner of inflicting the injury is cruel, an intention to kill can be inferred. Indeed an intention to kill can be deduced even from the nature and type of weapon used such as a knife in a sensitive part of the body. See MIKHAEL V STATE (Supra) SANI V STATE (2017) LPELR 4375 (SC). Even the nature of the wound inflicted alone is sufficient to infer the intention to kill. See ERIC UYO V A.G, BENDEL (1986) 1 NWLR (Pt 17) 418. In ASUQUO V STATE (2014) LPELR 23490 (CA) the Court adopted the view that if a dangerous weapon such as an iron bar or a dagger was used, the Courts will infer that death was intended. In the recent case of OGUNDARE OJO JAMES V THE STATE (2018) LPELR 44357 (SC) the apex Court referred to an earlier decision in the case of R V OMORI (1961) 1 ALL NLR 33, and held that an intention to kill may be inferrable from the severity with which a matchet blow is struck.” PER AMINA AUDI WAMBAI, J.C.A.
JUSTICES
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
IBRAHIM ISAH Appellant(s)
AND
THE STATE Respondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment):
This criminal appeal arose from the judgment of Hon. Justice Sabi’u Bala Shuaibu of the Sokoto State High Court delivered on 30th June, 2016. The Appellant was the subject of the charge on account of what happened to one AHMED MOHAMMED. What happened to him.
According to the amended charge, on or about the 1st day of August 2014 at Zango Area in Zuru Local Government Area, Kebbi State, the Appellant used a knife and stabbed the Ahmed Mohammed on his shoulder during a fight between himself with his brother, Mu’azu Isah and the Ahmed Mohammed which resulted in the death of the said Ahmed Mohammed.
Appellant pleaded not guilty to the charge. The prosecution called 2 witnesses and tendered 4 exhibits. The Appellant was the sole witness for the defence and tendered no exhibit. After reviewing the evidence, the learned trial judge returned a verdict of guilty and sentenced him to death by hanging having found that the prosecution proved its case of culpable homicide punishable with death against him as charged.
Upset by his conviction and sentence, the Appellant commenced this appeal the notice of which was filed on 29th September, 2016 attacking the judgment on 3 grounds. Leave was granted on 27/3/18 to amend the said Notice of appeal by incorporating two additional grounds of appeal. The amended Notice of appeal challenging the judgment on 5 grounds was filed on 5/12/2017 but deemed on 27/3/18.
From the 5 grounds of appeal, learned G. A Shehu Esq., who settled the Appellant’s brief of argument filed on 5/12/2017 but deemed and further deemed on 27/5/18 & 10/10/18 respectively, distilled two issues for determination to wit:
1. Whether having regard to the evidence adduced before the trial Court, the trial Court was right to have convicted the appellant on the charge of culpable homicide punishable with death. (This is distilled from ground two and three of the grounds of appeal).
2. Whether the right of the Appellant to fair hearing was breached by the trial Court when it granted amendment of the charge of culpable homicide not punishable with death to culpable homicide punishable with death without addressing the appellant’s issue for determination in his address in opposition to the application for amendment. (This issue is distilled from ground four, five and six).
Learned Counsel Mika?ilu Usman Makera, the Deputy Director, Public Prosecutions, Ministry of Justice, Kebbi State, who settled the respondent’s brief of argument filed on 12/1/2018 but deemed and further deemed on 27/3/18 and 10/10/2018 respectively, adopted the two issues raised by the Appellant’s counsel.
I shall determine this appeal on these two issues but in the reverse order. The second issue will be determined first and the 1st issue as the 2nd issue respectively.
ISSUE NO.1
The contention of the learned Appellant’s counsel on this issue which he argued as his 2nd issue, is that the amended charge upon which the Appellant was convicted is null and void, the Ruling granting the application for the amendment having been granted as unopposed in complete disregard to the Appellant’s written address and argument canvassed therein in opposition to the application, thereby breaching the Appellant’s right to fair hearing. Our attention was drawn to pages 49 – 51, and 53 – 55 of the record of Appeal.
The failure of the learned trial judge to pronounce on the issue and resolving it one way or the other, it was submitted, amounts to a breach of the Appellant’s right to fair hearing, stressing further that once there is a breach of fair hearing, the whole proceedings and the Ruling resulting therefrom amount to a nullity, urging us to so hold that the said Ruling granting the amendment of the charge from culpable homicide not punishable with death to culpable homicide punishable with death amounts to a nullity. He called in aid the cases of NKEREUNWEN UDOFIANKPAN V F.R.N (2011) LPELR 3956 (CA) and OVUNWO V WOKO (2011) 46 NSCQR 516.
While conceding the fact that the grant of such an application is discretionary, learned counsel quickly pointed out that where the discretion is not seen to have been exercised judiciously & judicially in accordance with common sense and justice including putting into consideration the Appellant’s right to fair hearing which was breached, this Court is empowered to intervene as was held in the case of F.R.N V Alhaji Attahiru Dalhatu Bafarawa & Ors (2016) LPELR 40482 (CA), urging us to so hold and resolve the issue in favour of the Appellant.
In his response, respondent’s learned counsel submitted that the learned trial judge was right in granting the application for amendment of the charge and the provisions of Section 208 (1) & (2) of the Criminal Procedure Code duly complied with by reading and explaining the amended charge to the Appellant and taking his fresh plea. The case of ATTAH V STATE (1993) 7 NWLR (Pt 305) SC. was cited in support.
On the claim of denial of Appellant’s right to fair hearing, it was submitted in rebuttal, that the learned trial judge was right in discountenancing the Appellant’s written address in opposition to the application being an irregular process. That the proper procedure of challenging an application supported by affidavit is by filing a counter – affidavit and not a written address and having not done so, the trial judge was right to have held that the application was unopposed.
Furthermore, it was submitted that though attention was drawn by the Respondent’s counsel to Section 211 of the right to re-call witnesses after the fresh plea, the learned Appellant’s counsel only sought an adjournment to re- address the Court on the substantive case. The Appellant’s right to a fair hearing he insisted, cannot be said to have been denied, urging us to resolve the issue against the Appellant.
The background facts that triggered this issue are that after the close of evidence on both sides and the case adjourned for counsel final written addresses, the Respondent’s counsel by a motion on notice filed on 5/5/2016 pursuant to Section 208 (1) & (2) of the Criminal Procedure Code (C.P.C) supported by a 10 paragraphed affidavit and a written address, sought leave of the trial Court to amend the charge from culpable homicide not punishable with death to culpable homicide punishable with death. The Appellant’s counsel filed a written address in opposition to the application.
The application was heard on the 24/5/2016 and in its Ruling on 31/5/2016 the court held:
“Application having been without objection is hereby ordered as prayed.”
It is on these stated facts and the Ruling that the Appellant’s learned counsel complains of breach of Appellant’s right to fair hearing.
Now, Section 208 (1) C.P.C provides:
“any Court may alter or add to any charge or frame a new charge at any time before judgment is pronounced.”
This Section empowers the Court in a criminal trial at any stage before judgment is pronounced, to alter, add to or frame a new charge against an accused person. The power to ‘alter’ the charge includes the power to change something in the charge, to make it different. The power to add to the charge includes the power to include something into the charge to make it better or more appropriate. This Section also empowers the Court to amend the charge or frame entirely new charge or substitute one charge with another. There are no restrictions or limitations imposed on the nature of the ‘alteration’ or ‘addition’ or the time of making such ‘alteration’ or addition provided that it is made before the pronouncement of judgment. The alteration or addition may be minor or major and may be made as early as immediately after the accused takes his plea to the initial charge or as late as just before the delivery of judgment. These are the only limits set by Subsection 1 of Section 208.
To ensure that the accused does not by the amendment suffer any injustice or is not prejudiced, an inbuilt mechanism to safeguard the interest and preserve the right of the accused person to fair hearing, which must be strictly complied with, are rolled out in Subsection 2 of the same Section 208, Sections 209, 210 & 211.
Sub-section 2 of Section 208 provides: –
“Every such alteration or addition or new charge shall be read and explained to the accused person and his plea thereto shall be taken.”
By this provision, it is mandatory that the amended or new charge be read and explained to the accused person and his plea be taken to the amended or new charge. This is so because once a charge is amended or new charge is framed, the amended or new charge replaces and supercedes the original charge and whatever plea of the accused that was taken to the original charge ceases to be of any significance. It is thus mandatory that the amended or new charge be read and explained to the understanding of the accused and his fresh plea be taken. Failure to read and explain the amended/new charge to the accused or to take or record his fresh plea is fatal to the prosecution?s case and renders the entire proceedings a nullity. SeeOGUDO V STATE (2011) 18 NWLR (Pt 1278) 1, ATTAH V STATE (Supra).
Furthermore, by Sections 209 and 210 if in the opinion of the Court the revised charge is such that proceeding immediately with the trial would be prejudicial to the prosecution or the accused in his defence, the Court may direct a new trial or adjourn the trial to such a period as it deems necessary. This is to ensure that the accused in particular, is afforded an opportunity to take necessary steps to defend the new charge. It is in furtherance of this that Section 211 allows the prosecution or the accused person whenever a charge in revised, to re-call or re summon and examine any witness who has previously been examined and or to call any further witness that may be material to the case. Like its twin requirement in Section 208 (2); the prosecution and accused person must be allowed to re-call witnesses who may have given evidence and to call further witnesses if they so desire. Failure to comply with this provision is fatal as failure to read and explain the revised charge to the accused and taking his fresh plea is. The proper procedure therefore for a Court to follow when a charge is amended is to read and explain the amended charge to the accused and call upon him to make a fresh plea and ask him if he wishes to re-call or call further witnesses.
The consequence of not following these laid down procedure was decreed in the case of OGUDO V STATE (2011) 18 NWLR (Pt 1278) 1 Per Muntaka – Coomasic JSC when the lawlord stated inter alia that ?failure to follow this procedure would render the whole proceedings a millity. See Joves V I.G.P (1960) 5 FS 38 at 43.
Now, in the case at hand, after the amendment of the charge, the amended charge was read and explained to the Appellant and his fresh plea was taken. Thereafter, the Respondent drew attention to Section 211 of the right of either side to re-call witnesses but that he had no intention to recall any witness. Then, the Appellant’s counsel, Ayuba stated:
“Having granted the application as prayed and the prosecution does not intend to call any additional witness we shall be asking for an adjournment to re-address the Court.”
It is clear that though the defence was informed of the right to re-call witnesses for further examination or cross-examination or to call further witnesses, the learned Appellant?s counsel elected not to recall any witness but chose to seek adjournment to re-address the Court.
The law is clear that once the procedural steps in Sections 208 (2) 209, and 210 are duly compiled with as was done in the case at hand, an accused person, more so one represented by counsel who elects not to utilize the opportunity provided in Section 211 cannot complain of breach fair hearing or any prejudice. It does not lie in his mouth to do so.
On the learned counsel’s contention that failure to consider his written address in opposition to the application amounts to breach of Appellant’s right to fair hearing, it is settled law that the only way to negate or challenge facts in an affidavit is by filing a counter – affidavit and failure so to do, incurs the presumption that the unchallenged facts are correct and admitted. See GLOBE FISHING v. COKER (1990) 11 SCNJ 56, HONDA PLACE LTD V GLOBE MOTORS HOLDING (NIG) LTD (2005) 11 M.J.S.C 1 @ 15. I cannot therefore agree more with the learned Respondent’s counsel that the Appellant is deemed to have admitted the facts in the Respondent’s affidavit in support of the motion having not filed any counter – affidavit that being the correct position of the law.
Let me however, quickly point out that it is not the law that a Respondent who does not dispute the averments in the supporting affidavit cannot file a written address on points of law to oppose the application, neither is it the law that the Court should turn a blind eye and keep mute or keep its pen dry on an irregularly filed address without saying a word, at least on its competence, if not on its merits. It behoves on the Court to consider and resolve the legal point canvassed in the written address or at least to declare same incompetent and state its reasons for such decision. To this extent, I agree with the Appellant’s counsel that the learned trial judge ought to have commented on the written address.
The pertinent question is whether a miscarriage of justice was occasioned by such failure or the Appellant’s right to fair hearing was breached. My answer to this poser is a resounding ‘No’. This is because all the procedural steps stipulated by law to safeguard and guarantee the Appellant’s right to fair hearing were duly complied with and aside these requirements in Sections 208 (2), 209 – 211 C.P.C, I know of no provision in the code which requires the sanction or permission of an accused person before an amendment can be made to a charge or a new charge be framed. Indeed as observed by Kalgo JSC in UGURU V STATE (2002) 9 NWLR (Pt 771) 90, whenever the prosecution decides to amend the charge already before the Court, it can proceed to do so. It applies to the Court to accept the amendment and after hearing the party, the Court may or may not accept or allow the amendment.
It is to be noted that the discretion is that of the Court to be exercised having regards to the law and the facts of each case, and the defence cannot deny the prosecution its right to amend a charge in accordance with the law. I am therefore of the humble but firm view that the failure of the learned trial judge to consider and pronounce on the Appellant’s written address in opposition to the application for amendment of the charge, though wrong, does not occasion a miscarriage of justice or deny the Appellant his right to fair hearing, Sections 208 (1) (2) 209, 210 and 211 of the C.P.C having been duly complied with. In the circumstance, I resolve this issue against the Appellant and in favour of the Respondent.
ISSUE NO. 2
On this issue, it was submitted that the learned trial judge was wrong to have convicted the Appellant for culpable homicide punishable with death when the evidence on record points to the offence of culpable homicide not punishable with death in that the judge only focussed his attention on the type of weapon and the force used but failed to advert his mind to the fact that in determining whether death is probable or only likely consequence of the act, the Court should also consider the part of the body injured and the nature of injury. He argued that the part of the part of the body injured being the shoulder, and the cause of death being that of unstemmed excessive bleeding which did not cause any damage to any organ, death was only likely and not a probable consequence of the injury since a reasonable man would not consider death to be the normal or natural effect of that act. He cited in support the cases of MATI MUSA V STATE (2014) LPELR 24026 (CA) 1, MICHAEL V STATE (2008) 13 NWLR (Pt 1104) 361, 377 and urged as to be persuaded by the case of STATE V GWOJI JIRE (1965) NNLR 52 AT 53.
Additionally, it was submitted that both the evidence of PW2 and unchallenged evidence of the Appellant as DW1 reveal that the homicide was committed in a sudden fight without premeditation which renders the offence culpable homicide not punishable with death under Section 222 (4) of the Penal Code. The unchallenged evidence of the Appellant that he was first attacked with a stick by Musa Shehu and then stabbed by the deceased, he argued, ought to have been believed by the learned trial judge as held in the case of AIGBADION V THE STATE (2000) 2 NSCQR (Pt 1) 23 and the failure to so act on the evidence has occasioned a miscarriage of justice against the appellant, he contended.
The trial Court having not properly evaluated the evidence, we were urged to do so and to hold that death was only a likely and not a probable consequence of the Appellant’s act maintaining that the death of the deceased was not premeditated but occurred during a fight in the heat of passion. We were also urged to uphold Appellant’s defence of provocation.
Responding and submitting contrariwise, the learned Respondent’s counsel stated the ingredients of the offence of culpable homicide punishable with death which the prosecution must prove beyond reasonable doubt and contended that the Respondent succeeded in doing that.
The 1st and 2nd ingredients, that a human being died and that the Appellant caused the death, it was submitted are not in dispute as these facts were conceded by the Appellant’s counsel and further proved by the Exhibit 1, the medical report, which confirmed the death of Ahmed Mohammed as well as the evidence of PW2 and the Appellant’s confessional statement.
On the 3rd ingredient, learned counsel submitted that the contention of the Appellant’s counsel that death was only likely and not a probable consequence of the Appellant’s act, is a misconception of the law, arguing that the Appellant had the knowledge that by stabbing the deceased with a knife on his shoulder, death or grievous bodily hurt was likely to be inflicted and it is immaterial if he intended to cause grievous hurt but death occurred. He cited in support the case of AUDU V STATE (2003) 7 NWLR (Pt 830) 516. It was submitted that the intention to cause grievous hurt which resulted in death will not mitigate punishment more so that the injury sustained was severe as confirmed by the medical report to be about 245 cm.
Furthermore, that contrary to the Appellant’s submission, there are several contradictions between the Appellant’s evidence in Court and his statement to the police. He highlighted the inconsequences; that while in cross- examination Appellant stated that he did not know where he stabbed the deceased, in his statement he stated that he stabbed the deceased on his leg. Similarly in the confessional statement the Appellant stated that he was in possession of a knife because his mother asked him to slaughter a cat but in cross – examination he stated that it was the deceased who came with a knife and he grabbed it and stabbed the deceased with it. We were urged to disregard the counsel’s argument and to hold that the learned trial judge rightly convicted the Appellant as charged as the prosecution proved all the ingredients beyond reasonable doubt.
Now, intention as Ngwuta JSC, put it in the case of NWOKERU V STATE (2013) 16 NWLR (Pt. 1380) 207 at 235, is the purpose or design with which an act is performed. It is the fore knowledge of the act coupled with the desire to do the act. The fore knowledge and the desire form the cause of the act in so far as they fulfill themselves through the operation of will.
A man’s intention is usually very difficult if not impossible to prove, for even the devil as crafty as it is, has not been able to know or read a man’s intention. A man’s intention, in the absence of a clear confession invariably can only be inferred from his conduct and surrounding circumstances within which he acts. It is from the manifestation of his conduct that his intention can be ascertained. See AREBAMEN VS THE STATE (1972) 7 NSCC 194, 200, KOLO VS COMMISSIONER OF POLICE (2017) LPELR 42577 (SC).
Therefore, to determine a man’s intention in the absence of a clear confession from him, is to look at his conduct or action and draw a plausible inference of his intention from the natural consequence of his action. Founded on the maxim that the guilty mind instigates the guilty act or flows into the guilty act, the act of a person is proof of his mens rea and this is why the law presumes that a man intends the natural and probable consequence of his act and is deemed to know the natural consequence of his action. See GARBA & ORS VS THE STATE (2000) 6 NWLR (PT. 661) 379; STATE VS JOHN (2013) LPELR – 20590 (SC).
Now, the ingredients of culpable homicide punishable with death which the prosecution must prove to succeed have been stated times without number to be: viz (i) that the death of a human being took place; (ii) that such death was caused by the accused; (iii) that the act of the accused caused the death with the intention of causing death or that the accused knew that death would be the probable consequence of his act. See MAIYAKI VS THE STATE (2008) 15 NWLR (PT. 1109) 173; MAMMAN VS THE STATE (2015) LPELR 25963 (CA)
It is needless to emphasize that all these ingredients must co-exist and each be proved beyond reasonable doubt for the prosecution to secure or sustain a conviction. See the recent decision of the Supreme Court in GALADIMA VS THE STATE (2017) LPELR 41909 (SC) and also ALI VS THE STATE (2015) LPELR 24711 (SC) by the same Court.
On the 1st & 2nd ingredients that a human being died and that the death was caused by the Appellant, parties are in unison. There seems to be no dispute on the proof of these two ingredients. Appellant’s learned counsel conceded these facts at page 5 lines 5 – 10 of his brief of argument. Moreover, the eye witness evidence of PW2 that Ahmed Mohammed died, the medical report, Exhibit 1 that confirmed the death of the said Ahmed Mohammed and the Appellant’s evidence as contained at page 35 of the record that.
“There was nothing I could do. I grabbed the knife and stabbed him with it,”
all put together, prove the 1st & 2nd ingredients of the offence.
There is concurrence of both counsel on the proof of these ingredients. Their parting of ways is on the proof 3rd ingredient.
The 3rd ingredient is that the act of the accused/Appellant was done with the intention of causing death or that the accused knew or had reason to know that death would be the probable and not only the likely consequence of the act or of any bodily injury which the act was intended to cause, and this is whether the Appellant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence.
On this ingredient, certain facts are not in dispute; that the Appellant inflicted injury on the shoulder of the deceased; that the weapon used was a knife; that the deceased bleed from the injury resulting into his death are all admitted facts. The only bone of contention is the ‘means rea’ for the offence and the availability to the Appellant of the mitigating defence of death resulting from a sudden fight and or provocation so as to mitigate the sentence from culpable homicide punishable with death to culpable homicide not punishable with death. This is the main issue in this appeal.
The requisite Constituents of this ingredient is ‘intention’ to kill or ‘knowledge’ or reason to know that death would be the probable consequence of the Appellant’s act. This is a question of fact to be determined from the surrounding circumstances and reasonable inferences to be drawn from the proved acts of the Appellant.
The pertinent question therefore is whether by such acts, the Appellant can be said to have intended to cause the death of the deceased or knew or had reason to know that death would be the probable and not only a likely consequence of his act.
The contention of the learned Appellant’s counsel is that death is only a likely and not a probable consequence of the Appellant’s act.
Now, an act is said to be ‘likely’ to have a certain consequence or to cause a certain effect if the occurrence of that consequence or effect would cause no surprise to a reasonable man. On the other hand, an effect is said to be a probable consequence if an act of the occurrence that of consequence would be considered by a reasonable man to be the natural and normal effect of that act. See Section 19 (1) & (2) of the Penal Code.
The determination of whether an act is likely or probable to cause death is a question of degree and is a matter of fact and not of law and it is to be determined from the facts or circumstances of each case. A likely consequence is one which would cause no surprise to a reasonable man but a probable consequence goes beyond that. It is one which would be considered by reasonable man to be the natural and normal effect of the act. The distinction is important because the greater the degree of certainty in the mind of the doer of the consequence of his act, the more justifiable the inference of his intention to kill or knowledge that death will be the natural consequence of his act.
Factors to be considered in determining whether the accused had the intention of causing death or knew that death was the probable or only likely consequence of his act include the followings:-
(1) The nature of the weapon used, whether lethal or non-fatal in nature;
(2) The part of the body struck or brutalized with the weapon;
(3) The extent of the proximity of the victim with the lethal weapon;
(4) Physical and health condition of both the deceased at the material time;
(5) If the deceased was treated at a hospital and died on admission, a report or certificate by the medical officer and the treatment of the death. See ATIKU V STATE (2010) 9 NWLR (Pt 1199) 241.
Where a weapon is used, the nature of the weapon, the injury inflicted with it and the part of the body so injured, generally, matters in resolving the question. A non-lethal weapon does not have the same effect as a lethal weapon, a light stick does not have the same effect as a big or heavy stick, a blow struck on the leg does not have the same effect with a blow struck on the head, the chest or other delicate parts of the body. All these facts must be borne in mind and considered in determining whether the accused has the knowledge of the consequence of his act. See LAMBA KUMBIN V BAUCHI N.A. (1963) NMLR 49.
Where therefore the weapon used is lethal in nature, that is deadly, the injury inflicted is severe; and the manner of inflicting the injury is cruel, an intention to kill can be inferred. Indeed an intention to kill can be deduced even from the nature and type of weapon used such as a knife in a sensitive part of the body. See MIKHAEL V STATE (Supra) SANI V STATE (2017) LPELR 4375 (SC). Even the nature of the wound inflicted alone is sufficient to infer the intention to kill. See ERIC UYO V A.G, BENDEL (1986) 1 NWLR (Pt 17) 418. In ASUQUO V STATE (2014) LPELR 23490 (CA) the Court adopted the view that if a dangerous weapon such as an iron bar or a dagger was used, the Courts will infer that death was intended. In the recent case of OGUNDARE OJO JAMES V THE STATE (2018) LPELR 44357 (SC) the apex Court referred to an earlier decision in the case of R V OMORI (1961) 1 ALL NLR 33, and held that an intention to kill may be inferrable from the severity with which a matchet blow is struck.
The law is that a person is taken to intend the natural consequences of his voluntary overt acts which he foresees are likeable to happen whether he intends them or not. If he intends to cause grievous bodily harm and death results he will be presumed to have intended to kill the other or to have the knowledge that death would be the probable consequence of the grievous bodily harm inflicted and be held culpable irrespective of the intention. See AUDU V STATE (Supra), NWOKEARU V STATE (2010) 15 NWLR (Pt 1215) 1, AFOLABI V STATE (2016) LPELR 40300 (SC), IBIKUNLE V STATE (2004) 2 NWLR (Pt 1019) 555.
Applying these to the case at hand can it be said that the Appellant intended or had knowledge that death would be the probable consequence of his act? The uncontested evidence on record is that the Appellant used a knife to inflict a penetrating injury measuring about 245cm at the right shoulder region of the deceased from which the deceased bled excessively and died on the same day. The lethal nature of the knife used in inflicting the injury is uncontestable, the severity of the injury inflicted with the lethal weapon is unchallenged and the aftermath of the injury undisputed.
The Appellant’s counsel has however, vehemently argued that the death of the deceased occurred from a sudden fight without premeditation. When an accused person relies on this defence, he admits that his act caused the death of the deceased but claims that he had no intention to kill the deceased.
It is trite that if the plea is successful, it mitigates the punishment from culpable homicide punishable with death to culpable homicide not punishable with death. The relevant provision of the Penal Code dealing with this defence is Section 222 (4) and it provides.
“Culpable homicide is not punishable with death if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.”
In order for this provision to come to play or avail an accused person, there must be a sudden fight in the heat of passion. There must be absence of premeditation and the accused must not have taken undue advantage of the victim or acted in a cruel or unusual manner. All these 3 requirements must co-exist.
Now, the Appellant in his earliest opportunity stated in Exhibit 1A that the fight between him and the deceased with 8 other persons took place in his house 3 weeks after his brother, Mu?azu Isah, had a quarrel with the deceased after a football match. That when the deceased and the others came to his house he was in possession of a knife to slaughter a cat which his mother asked him to slaughter and when the deceased beat him, he stabbed the deceased with the knife. His testimony in Court is that it was one Bello Salihu who first hit him (Appellant) with a stick and then the deceased stabbed him on his fore head and another person stabbed him at his shoulder. It was then that he grabbed the knife and stabbed the deceased with it on his shoulder. Aside from the glaring inconsistences between the Appellant’s evidence in Court and his statement to the police for which reason the learned trial judge disbelieved the story of the Appellant, it is obvious that the fight in which the Appellant said he was involved took place about 3 weeks after the initial quarrel between the deceased and the Appellant’s senior brother, Mu’azu Isah. Though he testified that he was stabbed on his forehead and shoulder in cross – examination, he admitted that he had no medical report from any hospital to that effect.
There is also no evidence on record that any injury or scar from the alleged stabs was shown to the Court.
On the other hand, the evidence of PW2 who was an eye witness is that he was together with the deceased when five people suddenly appeared and blocked the way. The deceased handed his cell phone to PW2 but PW2 asked him to hold it back and that they should not fight He, PW2, grabbed the deceased and put him behind his back. Mu’azu went round and struck the deceased. The deceased felt pains and retaliated. While PW2 intervened trying to separate them, unknown to him, the accused had a knife, brought it out and stabbed the deceased with it.
The deceased cried out that he had been stabbed on his shoulder, and bled profusely from the stab. PW2 removed the deceased’s shirt and tied the wound and the appellant ran away. PW2 also traced the cause or the genesis of the fighting to a previous misunderstanding during a football match between the deceased’s club and Mu’azu’s club.
According to him, “that probably explains why the accused was involved in the 2nd fight although he was not part of the initial fight at the match venue.”
It is noted that the Appellant in his evidence in Court retracted Exhibit 1A alleging that he was forced to sign it.
That notwithstanding, the law is trite that a Court can convict on a retracted confession provided there is some evidence outside the confession making it probable that the confession was true. See UBIERHO V THE STATE (2005) 5 NWLR (Pt 919) 644, OKOH V THE STATE 2014 8 NWLR (Pt 140) 502.
There is no doubt that the contents of Exhibit 1A and the Appellant’s evidence confirm the evidence of PW2 that the fight arose from a previous quarrel or fight between the Appellant’s senior brother, Mu’azu Isah and the deceased to which the Appellant was not even a party. What is more, the graphic evidence of PW2 who saw it all, is revealing. He was not cross-examined on the substantiality of the material parts of his evidence that the Appellant and his group were the aggressors; that the Appellant brought out a knife and stabbed the deceased at the shoulder, and the deceased bled profusely and died from the injury.
The implication of this is clear. It is that the Appellant admits the truth of the evidence as led by PW2 on the material points in issue. See OFORLETE V STATE (2000) 12 NWLR (Pt 684) 415, GAJI V PAYE (2003) 8 NWLR (Pt 823) 583, 605 A – C. That being the law, the learned trial judge was right in rejecting the Appellant?s evidence and in preferring that of PW2. What then sticks out is that neither the defence of provocation casually argued in the Appellant’s brief of argument nor the seriously argued defence in Section 222 (4) of the Penal Code avails the Appellant in that the death of the deceased was not caused in a sudden fight in the heat of passion, but in a planned and premeditated fight, three weeks after the initial quarrel or fight between the deceased and the Appellant’s brother. The death of the deceased was caused when the Appellant and his group attacked the deceased and took an undue advantage of the deceased, brought out a knife and stabbed the deceased on the shoulder.
It is clear therefore that the act of the Appellant was intended to cause the death of the deceased or grievous bodily harm or done with the knowledge that death or grievous bodily harm would be the probable consequence of his act. In other words, the Appellant intended to cause the death of the deceased or had the knowledge or reason to know that death or grievous bodily harm was the probable consequence of his action. The Respondent therefore also proved this ingredient beyond reasonable doubt. The prosecution having been found to have proved all the ingredients of offence beyond reasonable doubt, I find no merit in this appeal, it deserves to be and in hereby dismissed. The judgment of the lower Court delivered on 30th June, 2016 convicting the Appellant for culpable homicide punishable with death under Section 221 (b) of the Penal Code and sentencing him to death by hanging is affirmed.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother AMINA AUDI WAMBAI, JCA just delivered and I am in agreement with his reasoning in dismissing this Appeal as lacking in merit.
The position of the law is that a person is clearly guilty under Section 221 (b) of the Penal Code if the act by which death is caused is done with the intention of causing death, or if the doer of the act knew or had reason to know that death would be the probable and not a likely consequence of the act or of any bodily injury which the act was intended to cause.
Appellant and his cohorts on that fateful day of the incident cannot in the circumstances of this case feign ignorance of the likely consequences of their actions. The evidence on record shows that the Appellant in the midst of his gang members stabbed the deceased with a knife.
Perhaps, to demonstrate the complete lack of excuse on the part of the Appellant is the fact that the blow to the deceased’s shoulders was struck by the use of a Knife, which clearly shows that the intention was to kill him and no more. To this end, this Appeal is moribund and lacks merit and it is accordingly dismissed. The judgment of the High Court of justice sitting at Sokoto and delivered on the 30-6-2016 by SABI’U BALA SHUAIBU, J., is hereby affirmed. I abide by other consequential orders of Court.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read the draft copy of the lead Judgment just delivered by my learned Brother Justice Amina Audi Wambai JCA. I am in agreement with the reasoning and the conclusion contained therein. The prosecution has proved all the ingredients of the offence of Culpable Homicide punishable with death contrary to Section 221 (b) of the Penal Code Law against the Appellant. The Appeal failed and is hereby dismissed. The Judgment of the lower Court delivered on 30th June, 2016 convicting the Appellant for the offence of Culpable Homicide punishable with death contrary to Section 221 (b) of the Penal Code and sentencing him to death by hanging is hereby affirmed.
Appearances:
G.A. Shehu, Esq.For Appellant(s)
Mika’ilu Usman Makera (DDPP, MOJ, Kebbi State)For Respondent(s)
