KAWU v. STATE
(2020)LCN/14273(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Tuesday, June 16, 2020
CA/G/265/C/2019
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
ALHAJI BABAYO KAWU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THE RETRACTION OF A CONFESSIONAL STATEMENT WILL VITIATE ITS ADMISSION AS A VOLUNTARY STATEMENT
The law is that once a statement complies with the law and rules governing the method by which it is taken, and at the time it is tendered in evidence, there was no objection by the accused as a result of which it was admitted in evidence, then it is good evidence. Thereafter, no amount of retraction will vitiate its admission as a voluntary statement. It is a different matter where the admission of the statement in evidence is objected to ab initio and its voluntariness challenged. In such a case, there will be a trial-within-trial to decide its voluntariness. Similarly, it is also a different thing where the accused person admits at the time a statement is sought to be tendered that, although he signed the statement, he did so not voluntarily, but under some undue influence or duress. In such a case, the Court would weigh the credibility to be attached to such a statement. In the instant case, there was no objection at all to the admission of the statement in evidence. Therefore, the trial Court rightly rejected the attack on the statement. PER SANKEY, J.C.A.
WHETHER OR NOT MINOR DISCREPANCIES AND MINOR CONTRACTIONS THAT DO NOT TOUCH ON THE CORE SUBSTANCE OF THE CASE, CAN VITIATE A TRIAL
Put in the negative, a contradiction is not material when the contradictory evidence does not affect the live issue or issues in the case to the extent that the judgment would be given in favour of the party who called the contradictory evidence. Minor inaccuracies, discrepancies and even minor contradictions that do not touch on the core substance of the case, cannot be regarded as material contradictions and so do not vitiate a trial – Adoba V State (2018) LPELR-44065(SC) 33-35, B-A per Nweze, JSC; Famakinwa V State (2013) 7 NWLR (Pt. 1354) 597; Musa V State (2014) LPELR-23631(CA) 20-22, E-C; (2013) 9 NWLR (Pt. 1359) 214; Iregu V State (2013) 12 NWLR (Pt. 1367) 92; Osetola V State (2012) 17 NWLR (Pt. 1329) 251; Osung V State (2012) 18 NWLR (Pt. 1332) 256.
As far back as the year 1996, the Supreme Court in Theophilus V State (1996) 1 NWLR (Pt. 423) 139, 155, A-B settled the law as follows:
“It is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to the case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and therefore necessarily create some doubt in the mind of the trial Court that an accused is entitled to benefit therefrom.” PER SANKEY, J.C.A.
WHETHER O ROT THE COURT MUST CONSIDER ALL THE DEFENCES RAISED BY AN ACCUSED PERSON
Indeed, the law is trite that a Court must consider all the defences raised by the accused as well as all other defences which may surface in the evidence adduced before the Court, however slight – Kaza V State; Ahmed V State (1999) 7 NWLR (Pt. 612) 641. PER SANKEY, J.C.A.
DEFINITION OF THE OFFENCE OF “CULPABLE HOMICIDE”
Section 222(4) of the Penal Code Law 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 and unusual manner.”
Thus, in order for this provision to come into play, there must be a sudden fight in the heat of passion. There must also be an absence of premeditation; and the accused must not take undue advantage or act in a cruel or unusual manner. These elements must also co-exist – Danjuma V State (2019) LPELR-47037(SC) 20-21, E-B; Hassan V State (2017) LPELR-41994(CA) 8, B-E; Alfa V State (2016) LPELR-40552(CA) 25-26, G-E; Usman V State (2015) LPELR-40855(CA) 34, B-F; State V Shontu (2014) LPELR-24206(CA) 16-17, D-A.
The vital ingredient in Section 222(4) of the Penal Code in order to sustain the defence of sudden fight is that the accused must have been suddenly provoked by the deceased and the provocation must have led to an instant fight leading almost immediately to the death of the deceased in the course of the fight. Therefore, the Appellant has a bounden duty to lead credible and convincing evidence upon which he can rely on for the defence. However, he can also take advantage of other pieces of evidence before the Court that can encapsulate a defence of “sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”
In the case of Manu Galadima V State (2012) 18 NWLR (Pt. 1333) 610, E-H & A-B, Galadima, JSC held:
“Provocation by nature must involve some acts or series of acts done by the deceased person to the accused/appellant which would cause a reasonable person and actually caused the accused, a sudden and temporary loss of self control, rendering the accused to be subject or under such violent rage as to make him or her for the moment not to be in control and master of himself. The appellant who did not provide for any evidence in support of the defence he raises cannot, as in the case at hand, be given the benefit of the defence. The Court can only consider defences which are supported by evidence before it without which there is nothing to assess the veracity thereon. The proof is a matter of fact… The accused has the onus of adducing credible and positive evidence to support the plea of provocation raised. Where the accused/Appellant had failed to adduce such evidence as it is with the present case at hand, the trial Court has to rely on the evidence before it as adduced by the prosecution.” PER SANKEY, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice, Gombe State sitting at Gombe delivered on April 17, 2007, Coram: Yakubu, J. The Appellant was found guilty of culpable homicide under Section 221 of the Penal Code Law and sentenced to death by hanging.
The brief facts of the case leading to the Appeal are as aptly captured by both learned Counsel for the Appellant and learned Counsel for the Respondent in their respective Briefs of argument. I will merely re-hash them in order to set the scene for a review of the decision of the lower Court by way of this Appeal. The facts presented to the lower Court reveal that on 18-09-02, the Appellant and two of his friends, Yayari Jauro Fulfulde and Bello Yerima, went to a neighbouring village to pay a visit to a young girl, Adda Peto. When they arrived at about 8:00pm, they went into her house and engaged her in conversation. Shortly, thereafter, Adamu Manu (now deceased), came in and demanded to know why they were there at that time of the night. As a result, an argument ensued between the Appellant and the deceased. This escalated
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to the point that the Appellant challenged the deceased to a fight in the nearby bush. Even though the Appellant’s two friends tried to dissuade the deceased from agreeing to the fight, he (deceased) went with the Appellant and so the friends also followed them. They left the house and very shortly afterwards, the Appellant stabbed the deceased in his neck with a knife and he fell down, with blood gushing out of his stab wound. As a result of this, the deceased died on the spot. The Appellant and his friends then fled from the scene of crime, but were all later arrested by the Village Vigilante Group, who handed them over to the Police.
After due investigation, the Police charged only the Appellant to Court on a charge of culpable homicide punishable with death, punishable under Section 221 of the Penal Code Law. Upon his arraignment, the Appellant pleaded not guilty to the charge.
In proof of the Charge, the prosecution adduced evidence through six witnesses and tendered four Exhibits comprising of the Hausa and English versions of the confessional statements of the Appellant made to the Police, both at the Tongo Divisional Headquarters and
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later at the State Criminal Investigation Division (CID), Gombe, as well as the broken knife, being the weapon used in the stabbing incident, parts of which were recovered at the scene of crime and at the house of the Appellant. In his defence, the Appellant adduced evidence through two witnesses and also testified in his defence. The two witnesses did not know anything about the incident while the Appellant, as DW3, contended that the confessional statement was not voluntary, completely retracted his extrajudicial statements to the Police and also denied knowing the deceased, much less of engaging in a fight with him to the extent of stabbing him with a knife.
At the close of trial and final addresses of Counsel, Judgment was delivered by the learned trial Judge on April 17, 2007. Therein, he found and pronounced the Appellant guilty as charged and thereafter sentenced him to death by hanging. Dissatisfied with this decision, the Appellant, who was unable to file an Appeal within the period prescribed by law, filed an application for leave to appeal out of time, which application was heard and granted by this Court on June 10, 2019. Therein, the
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Appellant complained on four grounds.
At the hearing of the Appeal on 27-05-20, Y.H. Daddy Esq. holding the brief of J.L. Usoroh Esq., adopted and relied on the arguments contained in the Appellant’s Brief of argument filed on 31-07-2019 and settled by J.L. Usoroh Esq., in urging the Court to allow the Appeal. In like vein, Abubakar Jungudo Esq., ACSC with the Ministry of Justice Gombe State, adopted the arguments contained in the Respondent’s Brief of argument filed on 02-10-19, deemed duly filed on 21-01-20 and settled by Abubakar Jungudo Esq., in urging the Court to dismiss the Appeal and uphold the Judgment of the lower Court.
The Appellant’s Counsel in his Brief of argument, distilled one lone issue for determination from Grounds 1, 2 and 3 of his Grounds of Appeal as follows:
“Was the learned trial Judge right in convicting the Appellant of the offence of Culpable Homicide punishable with death under Section 221 of the Penal Code having regard to the totality of the evidence adduced before him?” (Grounds 1-3)
Similarly, the Respondent’s Counsel formulated a sole issue for determination from the
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Grounds of Appeal thus:
“Whether the trial Court was right to hold that the prosecution has proved its case (Culpable homicide punishable with death under Section 221 of the Penal Code) against the Appellant based on the evidence before the trial Court.” (Grounds 1-3)
It is evident that the contents of the two respective issues are virtually the same. Therefore, I adopt the issue as framed by the Appellant in resolving the Appeal.
Arguments:
Issue: Was the learned trial Judge right in convicting the Appellant of the offence of Culpable Homicide punishable with death under Section 221 of the Penal Code having regard to the totality of the evidence adduced before him?
The essence and sum total of the submissions of learned Counsel for the Appellant is that the Appellant ought not to have been convicted for the offence of culpable homicide punishable with death under Section 221 of the Penal Code Law. Instead, he should have been convicted and sentenced for culpable homicide not punishable with death under Section 224 of the Penal Code Law since the evidence adduced before the Court disclosed that he acted in the heat of a
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sudden fight. His submission is based on the following:
A) That the evidence of the PW1 and PW2 were conflicting and contradictory in material particulars. So the lower Court was wrong when it found that there were no material contradictions and that PW1 and PW2 were eyewitnesses and so witnesses of truth (pages 118 and 114 of the printed Record). He identified the instances of conflict and contradiction in the evidence of the two witnesses as follows:
i. PW1 in his evidence-in-chief said the the Appellant stabbed the deceased in front of Adda Peto’s house; while under cross-examination he said the Appellant stabbed the deceased after they had left the front of Adda’s house where they had been standing.
ii. Whereas PW1 testified that before he arrived at the scene of the fight, the Appellant had already stabbed the deceased; PW2 stated that he saw the knife during the fight but that at the time he arrived the scene, the Appellant had stabbed the deceased. Therefore, Counsel argues that PW1 did not know if there was a struggle or a fight before the actual stabbing, while PW2 saw the knife during the fight but got to the scene after
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the deceased had been stabbed. Counsel however concedes that both witnesses heard when the deceased shouted: “Waiyo Alh. Babayo Kawu has killed me with his knife.”
iii. Whereas PW1 testified that the handle of the knife used by the Appellant in killing the deceased had a black handle, PW2 said it had a red handle.
Due to these discrepancies in the evidence, Counsel submits that the two witnesses cannot be considered witnesses of truth.
B) Counsel further submits that from the evidence of PW1, PW2, PW3 (the father of the deceased) and PW6 (the IPO) who noticed signs of a struggle on inspection of the crime scene, it could be surmised that there was a sudden fight between the Appellant and the deceased which ended tragically in the death of the deceased, Adamu Manu. Yet, the learned trial Judge failed to consider the defence of sudden fight punishable under Section 224(4) or the defence under 222(7) of the Penal Code Law implicit in the evidence of the prosecution, which defences were available to the Appellant even though not specifically raised. Counsel submits that from the evidence of PW1, PW2, DW3 (the Appellant) as well as the
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confessional statements, Exhibits 3 and 3A, the Appellant stabbed the deceased in the course of a sudden fight. For the ingredients to be established to activate a defence of sudden fight, reliance is placed on the decisions in Gambo Musa V State (2009) 15 NWLR (Pt. 1165) 467, 493, D-F and Oji V Queen (1961) LPELR 25123 (SC) .
Counsel further submits that for the defence of sudden fight to avail the Appellant, it is immaterial who started the fight. The weapon used, in this case a knife, and the part of the body that was struck were also immaterial – Musa V State (2009) 4 LPELR 1930. He further submits that the type of weapon used i.e. the knife, does not equate to premeditation by the Appellant because it was not unusual for him to be carrying a knife on him. He contends that carrying knives, daggers, etc, on oneself is common especially in rural settings in Nigeria and knives are not used exclusively for the commission of crimes but for other purposes – Oji V Queen (supra). He asked the Court to take judicial notice of this latter fact.
C) Counsel also asked the Court to take judicial notice of the fact that both the Appellant and the deceased
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were 18 years old at the time of the incident. They were therefore both adolescents. He asked the Court to also take judicial notice of the fact that the age of adolescence is usually a difficult period in a young person’s life due to the physiological, psychological and social changes that impact his behaviour. Therefore, the actions of both the Appellant and the deceased were actuated by natural aggression in the heat of passion in the course of a sudden fight. Learned Counsel therefore urged the Court to allow the Appeal on the following grounds :
(a) That the learned trial Judge did not properly evaluate the evidence before him and so arrived at a wrong decision;
(b) That he relied on the conflicting evidence of PW1 and PW2;
(c) That he failed to consider the defence of sudden fight which availed the Appellant;
(d) That he wrongly interpreted the term “premeditated”; and
(e) That he failed to take judicial notice of facts which are common knowledge in reaching his decision.
Counsel finally urged the Court to set aside the conviction and sentence of the Appellant under Section 221 of the Penal Code Law and
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replace it with a conviction and sentence of culpable homicide not punishable with death under Section 224 of the same Law, and to impose a term of imprisonment in place of the sentence of death by hanging. In addition, Counsel proposes that the 17 years in prison already served by the Appellant should be considered adequate punishment for the lesser conviction under Section 224.
In responding to the submissions of the Appellant, learned Counsel for the Respondent in his Brief of argument submits that the prosecution proved all the ingredients of the charge of culpable homicide punishable with death under Section 221 of the Penal Code Law; and that the Lower Court properly relied on the evidence of the PW1 to PW4 as well as the Exhibits tendered in arriving at its decision. For the ingredients of the offence, learned Counsel submits that they were proved as follows:
1. That the death of a human being took place: this was established by the evidence of PW1, PW2, PW3 and PW4. These pieces of evidence were corroborated by Exhibits 3 and 3A (the confessional statements of the Appellant) and the evidence of the Appellant himself as DW3.
2. That such
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death was caused by the act of the accused person: this was established by the evidence adduced through PW1, PW2, PW3, DW3 (the Appellant) and Exhibits 3 and 3A – confessional statements which were positive and clear. PW1 and PW2 were eyewitnesses who witnessed the stabbing, the injuries sustained by the deceased (Adamu Manu), heard him shout “Wayyo Babayo has killed me” and also saw him die; while PW3 (Manu Ali, father of the deceased) and PW4 (the first Investigating Police Officer) recovered the corpse of the deceased from the scene of crime; PW4 also recovered the steel blade of the broken knife at the scene of crime and subsequently its black handle in a search at the Appellant’s room.
3. That the act of the Appellant which caused death was done with the intention of causing death or that the Appellant knew that death would be the probable consequence of his act: Counsel refers to the nature of the weapon used, a knife (Exhibit 2), which was deadly or lethal; the part of the body struck i.e. the deceased’s neck, which is a delicate part of the body; the nature of the injury sustained; the degree of force applied; and the
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proximity of the victim to the weapon – Iden V State (1994) 8 NWLR (Pt. 365) 719; Ejeka V State (2003) 7 NWLR (Pt. 819) 408.
Counsel submits that contrary to the submission of the Appellant, the Appellant himself in his confessional statements, Exhibits 3 and 3A, admitted that the PW1 and PW2 were present at the scene of crime when the incident took place. Thus, the confessional statements corroborate the evidence of PW1 and PW2 and the Lower Court was right to have believed them.
Counsel denied the contention that the evidence of the PW1 was conflicting in itself. It was only clarified under cross-examination. On the alleged contradictions in the evidence of PW1 and PW2 in respect of the color of the handle of the knife and the finding of the Court thereon (page 118 of the Record), Counsel submits that it is not every discrepancy or inconsistency in the testimonies of witnesses that will vitiate the decision of a Court. Instead, such discrepancy or inconsistency must be material and substantial such that it affects the fundamental issue to be determined by the Court – Shoremi V State (2010) 16 NWLR (Pt. 1218) 65, 81; Ikemson V State (1989) 3 NWLR
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(Pt. 110) 455.
Counsel further submits that the Lower Court rightly relied on the confessional statement of the Appellant to convict him because a confession is the strongest evidence of the guilt of an accused person, stronger than the evidence of an eyewitness because it comes from the accused person himself. Therefore, a free and voluntary confession alone is sufficient to ground a conviction even without further corroboration – Akpan V State (2010) 8 LRCN 70, 73; Osung V State (2012) 11 SCM 176, 178; Gabriel V State (2011) 6 NWLR (Pt. 1190) 280, 290. Nonetheless in this case, the confessional statements were amply corroborated by the evidence of the PW1 and PW2.
On the submission in respect of the sentence of death, learned Counsel submits that Section 222(4) of the Penal Code Law cannot avail the Appellant because it was he who challenged the deceased to the bush for a fight knowing fully well that he was armed with a knife and that the deceased was not armed. He took undue advantage of the unarmed deceased and acted in a cruel and unusual manner. Counsel also referred to the degree of force applied by the Appellant in stabbing the deceased such
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that the knife broke; as well as the nature of injury inflicted on the deceased which was very grave as it was both deep and wide and in the neck, which is a delicate part of the body.
From these facts, Counsel submitted that the act of the Appellant was premeditated and therefore the only inference to be drawn is that the Appellant intended to kill or to cause grievous bodily harm to the deceased, and so intended the natural consequences of his act – Oludamilola V State (2010) 5 SCM 166, 170; Audu V State (2006) 3 CRPR 87, 90-91; Udu V State (2000) NWLR (Pt. 664) 283, 286.
On the submission that the Appellant at 18 years of age, was an adolescent and so that should serve as a mitigating factor, Counsel submits that the legal age of criminal responsibility is 13 years. Thus, that the Appellant’s act did not fall within the protection provided under Section 50 of the Penal Code. He urged the Court to therefore disregard this submission.
Counsel finally submits that the Lower Court was right when it convicted and sentenced the Appellant of the offence of culpable homicide punishable with death under Section 221 of the Penal Code. He urged
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the Court to dismiss the Appeal and affirm the conviction and sentence.
Resolution:
It is quite obvious, even from a cursory examination of the proceedings in the Record of Appeal, that the Appellant has done a complete 360 degree turn in this Appeal from his defence as presented at the lower Court. At the Lower Court, his defence as DW3 was one of a complete denial of the allegations contained in the Charge. His defence was that he did not fight the deceased and also did not stab him with a knife. He contended that after he was arrested, he was charged to Court by the Police, specifically by the PW6, because he was not from Jangada village and, in particular, because he did not succumb to the demand of the PW6 to pay him the sum of N20, 000.00 demanded for his release; whereas the mothers of PW1 and PW2 were from Jangada village and their fathers paid the N20, 000.00 demanded by the Police, and so were not charged along with him. It is therefore quite surprising, to say the least, that in the Appeal now before this Court, the Appellant, aside from pointing out so-called contradictions and discrepancies in the evidence of the prosecution, admits in
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essence that he did stab the deceased with a knife on the neck on the fateful night, but that it was in the heat of a sudden fight. For this reason, Counsel contends that the Appellant is entitled to the defence of sudden fight under Section 222(4) of the Penal Code. Consequently, he has asked this Court to reduce the Appellant’s sentence from that of death by hanging under Section 221 of the Penal Code Law to time already served in prison for the offence of culpable homicide not punishable with death under Section 224 of the Penal Code Law.
These two opposing positions taken by the Appellant before the Lower Court and before this Court are totally inconsistent with each other and raises questions about the veracity of either of the two accounts. This is because the Appellant, having made confessional statements at the earliest opportunity upon his arrest, (Exhibits 3 and 3A), retracted it during trial when testifying as DW3, contending that he had no knowledge of the stabbing of the deceased. It is no wonder that the learned trial Court attached no weight to the retraction and the story that followed because when he had the opportunity to raise
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and cross-examine the PW6 especially on the reason why he was charged to Court because he refused to pay the sum of N20, 000.00 allegedly demanded, he did not raise the issue. It was clearly a sham defence and an afterthought and the learned trial Judge saw through it sufficient to observe that having watched his demeanor, the Appellant was not a witness of truth. I am not in a position to dispute or counter this keen observation of the learned trial Judge since this Court only deals with cold, hard facts contained in the Record.
Yet again, it suits the Appellant to suddenly admit on appeal to this Court that he indeed stabbed the deceased on the night in question, but that it was in the heat of a sudden fight, therefore invoking the defence under Section 222(4) of the Penal Code Law which is punishable under Section 224 of the Penal Code. Nevertheless, having made these observations, I will still go through the arguments of both Counsel canvassed in respect of the sole issue for determination to see whether or not there is merit in the Appeal.
The first major submission of learned Counsel for the Appellant is that the learned trial Judge acted
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wrongly on the evidence of the PW1 and PW2, which he contends were conflicting and full of contradictions. Firstly, it must be said that is settled law that one evidence contradicts another evidence when it says the opposite of what the other evidence has stated, and not simply when there is a minor discrepancy between them. Two pieces of evidence contradict one another when they are themselves inconsistent on material facts – Bassey V State (2012) All FWLR (Pt. 633) 1516, 1832. It is acceptable for little variations and differences to appear when witnesses give evidence on the same subject matter. Thus, it is only when the evidence of witnesses violently contradict each other that a red flag is waved.
Going further, assuming that there were contradictions in the evidence of PW1 and PW2, it is the law that the nature of contradictions that would be fatal must relate to material facts and must also be substantial. It must deal with the real substance of the case. Put in the negative, a contradiction is not material when the contradictory evidence does not affect the live issue or issues in the case to the extent that the judgment would be given in favour
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of the party who called the contradictory evidence. Minor inaccuracies, discrepancies and even minor contradictions that do not touch on the core substance of the case, cannot be regarded as material contradictions and so do not vitiate a trial – Adoba V State (2018) LPELR-44065(SC) 33-35, B-A per Nweze, JSC; Famakinwa V State (2013) 7 NWLR (Pt. 1354) 597; Musa V State (2014) LPELR-23631(CA) 20-22, E-C; (2013) 9 NWLR (Pt. 1359) 214; Iregu V State (2013) 12 NWLR (Pt. 1367) 92; Osetola V State (2012) 17 NWLR (Pt. 1329) 251; Osung V State (2012) 18 NWLR (Pt. 1332) 256.
As far back as the year 1996, the Supreme Court in Theophilus V State (1996) 1 NWLR (Pt. 423) 139, 155, A-B settled the law as follows:
“It is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to the case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and therefore necessarily create some doubt in the mind of the trial Court that an accused is entitled to benefit therefrom.”
The nature of the contradictions complained of have earlier been set
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out in the submissions of learned Counsel for the Appellant, as well as in the body of the Judgment, and so no useful purpose will be served in repeating them here. However, in weighing the nature of the so-called contradictions, the difference in evidence in the evidence of PW1 and PW2 on the color of the handle of the knife used in stabbing the deceased – black or red, the actual spot where the deceased was eventually stabbed – in front of Addo Peto’s house or on the way to the bush, and whether the PW1 and PW2 arrived upon the scene at the actual moment the accused stabbed the deceased or soon thereafter when the deceased, still in the presence of the accused person, was shouting “Waiyo, Alhaji Babayo has killed me”, all evidently amount to nothing discrepancies and minor inconsistencies that do not detract from the substance/kernel of the cumulative evidence of these eyewitnesses that it was the Appellant who on that fateful night, stabbed the deceased with a knife in the right side of his neck which which act caused him to bleed profusely and subsequently led to his untimely death instantly on the spot. This is more so that the account
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given by the Appellant at the earliest opportunity in his confessional statement (Exhibits 3 and 3A) tallied in material particulars with the accounts of the PW1 and PW2. The Appellant himself even went further in the confession to positively confirm that his friends, PW1 and PW2, were actually present at the scene of crime when he stabbed the deceased, contrary to the submission of his Counsel. Furthermore, it is settled law that where there is a contradiction in the case of the prosecution, and the person accused of a crime steps up and admits to committing the crime, as in this case through Exhibits 3 and 3A, the contradiction is rendered irrelevant – Simeon Lalapu V Commissioner of Police (2019) LPELR-47814(SC) 16, C-E per Galumje, JSC.
Besides, minor and insignificant contradictions in the case of the prosecution are not so unusual. This is because it is difficult, if not impossible, for two or more persons who witness the same incident to give identical accounts of what they saw. Instead, each person’s account would be given from his own perspective of the event and this can hardly be the same due to imperfections in human recollection.
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In fact, if witnesses were to give the exact same evidence, it would be suspicious and would be a pointer to the fact that the witnesses were tutored and the evidence was rehearsed before hand and so may not be what actually transpired. Thus, such innocuous contradictions are immaterial if the whole effect of the accounts of the witnesses is the same. Dibie V State (2007) All FWLR (Pt. 363) 83, 110, B-D & 106, E-G.
Thus, the long and short is that it is not every contradiction in the prosecution’s case that will raise doubt in the prosecution’s case, the benefit of which ought to be resolved in favour of the accused. Instead, it is only contradictions that are substantial and fundamental to the main issue in question in the case that would be fatal to the prosecution’s case. The character of evidence that will qualify as such material contradiction is the evidence that will cast reasonable doubt as to the guilt of the accused. This explains why the Supreme Court has repeatedly emphasized on the place of contradictions in a criminal trial – Ayinde V State (2019) LPELR-47835(SC) 11-16, E-A per Okoro, JSC; Adisa V State (2018)
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LPELR-46340(SC)14, B-F; Nwabueze V State (1988) 4 NWLR (Pt. 86) 16.
For instance, in the case of Agbo V State (2006) 6 NWLR (Pt. 977) 545, 563, Ogbuagu, JSC stated thus:
“In a string of decided authorities by this Court, it is now firmly established that for contradictions to be fatal to the prosecution’s case it must go to the substance not of a minor nature. It is settled that if every contradiction however trivial to the overwhelming evidence before the Court, will vitiate a trial, nearly all prosecutions will fail. That human faculty will miss some minor details due to lapse of time and error in narration in order of sequence.”
In the instant case, the main issue is whether the ingredients of the offence of culpable homicide punishable with death were proved. On a proper assessment of the evidence in the record, the whole effect of the accounts of the PW1, PW2, PW3 and PW4 is the same namely, that the accused person stabbed the defenceless and unarmed deceased on his neck with a knife during a fight resulting in the latter’s instant death. Thus, in my view, the contradictions highlighted by Counsel for the Appellant
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were both minor and insubstantial, and did not cause a dent in the prosecution’s case.
The second issue raised by the Appellant is in respect of the confessional statement, Exhibits 3 and 3A. The first extra-judicial statement made by the Appellant immediately upon his arrest to the PW4 (the first IPO) at Tongo Police Station, was admitted in evidence as Exhibit 1. However, it was rightly expunged from the Record by the learned trial Judge because, whereas the Appellant made the confessional statement in Hausa language to PW4, he took it down in English. Exhibits 3 and 3A was therefore the Hausa and English version of the second extra-judicial statement of the Appellant made to the PW6 at the State Police CID Headquarters, Gombe after the case was transferred from Tonga Police Station, being a case of culpable homicide.
The law is that once a statement complies with the law and rules governing the method by which it is taken, and at the time it is tendered in evidence, there was no objection by the accused as a result of which it was admitted in evidence, then it is good evidence. Thereafter, no amount of retraction will vitiate its admission
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as a voluntary statement. It is a different matter where the admission of the statement in evidence is objected to ab initio and its voluntariness challenged. In such a case, there will be a trial-within-trial to decide its voluntariness. Similarly, it is also a different thing where the accused person admits at the time a statement is sought to be tendered that, although he signed the statement, he did so not voluntarily, but under some undue influence or duress. In such a case, the Court would weigh the credibility to be attached to such a statement. In the instant case, there was no objection at all to the admission of the statement in evidence. Therefore, the trial Court rightly rejected the attack on the statement.
In addition, based on the totality of the evidence of the prosecution witnesses, which was not discredited or controverted by any other piece of evidence to the contrary, the subsequent retraction of the confessional statement, Exhibits 3 and 3A, was rightly rejected by the trial Court as a mere afterthought. I say this because in the retraction by the accused in Court as DW3, he not only denied committing the offence and the facts in the
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confession, he went further to testify that he did not even know the deceased, was not at the scene of crime and so, is not at all aware of anything that happened on the fateful date. He said instead, that there was a general fight between the boys in Jangada village and some other boys of which he was a part. However, he did not stab anyone, much less the deceased. It is however utterly surprising that in his Appeal before this Court, the same Appellant has suddenly invoked the defence of sudden fight between him and the deceased, a defence he did not raise at the trial Court and a defence which is completely inconsistent with the total denial of any knowledge of the deceased or the events that led to his death. It is therefore manifest that the retraction of Exhibits 3 and 3A by the Appellant as DW3 was a mere afterthought as it was rightly characterized by the learned trial Judge, and the Appellant was obviously, merely clutching at straws.
The third issue canvassed by the Appellant is that the Lower Court failed to consider the defence of sudden fight which he contends was implicit in the evidence of the prosecution, which defence was available to the
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Appellant, even though it was not specifically raised. Indeed, the law is trite that a Court must consider all the defences raised by the accused as well as all other defences which may surface in the evidence adduced before the Court, however slight – Kaza V State; Ahmed V State (1999) 7 NWLR (Pt. 612) 641.
Section 222(4) of the Penal Code Law 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 and unusual manner.”
Thus, in order for this provision to come into play, there must be a sudden fight in the heat of passion. There must also be an absence of premeditation; and the accused must not take undue advantage or act in a cruel or unusual manner. These elements must also co-exist – Danjuma V State (2019) LPELR-47037(SC) 20-21, E-B; Hassan V State (2017) LPELR-41994(CA) 8, B-E; Alfa V State (2016) LPELR-40552(CA) 25-26, G-E; Usman V State (2015) LPELR-40855(CA) 34, B-F; State V Shontu (2014) LPELR-24206(CA) 16-17, D-A.
The vital ingredient in
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Section 222(4) of the Penal Code in order to sustain the defence of sudden fight is that the accused must have been suddenly provoked by the deceased and the provocation must have led to an instant fight leading almost immediately to the death of the deceased in the course of the fight. Therefore, the Appellant has a bounden duty to lead credible and convincing evidence upon which he can rely on for the defence. However, he can also take advantage of other pieces of evidence before the Court that can encapsulate a defence of “sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”
In the case of Manu Galadima V State (2012) 18 NWLR (Pt. 1333) 610, E-H & A-B, Galadima, JSC held:
“Provocation by nature must involve some acts or series of acts done by the deceased person to the accused/appellant which would cause a reasonable person and actually caused the accused, a sudden and temporary loss of self control, rendering the accused to be subject or under such violent rage as to make him or her for the moment not to be in control and master of
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himself. The appellant who did not provide for any evidence in support of the defence he raises cannot, as in the case at hand, be given the benefit of the defence. The Court can only consider defences which are supported by evidence before it without which there is nothing to assess the veracity thereon. The proof is a matter of fact… The accused has the onus of adducing credible and positive evidence to support the plea of provocation raised. Where the accused/Appellant had failed to adduce such evidence as it is with the present case at hand, the trial Court has to rely on the evidence before it as adduced by the prosecution.”
Hence, the Court is obliged to consider all defences available to a person accused of culpable homicide, whether expressed or implied, in the evidence adduced before it. However, the trial Court is under a duty to consider such defence(s) open to the accused only as disclosed or supported by evidence on the printed Record. A Court of law will not presume or speculate on the existence of facts not placed before it and the accused is usually required or recommended to give his evidence viva voce rather than adopting
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his previous extra-judicial statement for his defence or resting his case on the evidence of the prosecution – Yaro V State (2007) 18 NWLR (Pt. 1066) 215, per Oguntade, JSC.
First and foremost, the submission of learned Counsel for the Appellant is premised on a fallacy. Contrary to his contention, neither the evidence from the prosecution nor that from the accused suggested that the accused stabbed the deceased in the heat of a sudden fight. The prosecution’s case was that when the deceased met the PW1, PW2 and the accused at his house talking to the young girl, Addo Peto, he merely asked why they were there at that time of the night. In response, the accused challenged the deceased to a fight/duel in the bush. The PW1 and PW2 tried to prevent this violent encounter and in furtherance of this, appealed to the deceased not to accept the accused person’s challenge. However, the deceased still followed the accused person, with the PW1 and PW2 following hotly on their heels. It was at this point that the accused whipped out his hidden knife and stabbed the deceased on his neck. The deceased collapsed on the spot clasping the stab wound on his
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neck from which blood was gushing, while shouting that the accused person had killed him. Before help could reach him, he died on the spot. Apart from this evidence, none of the eyewitnesses gave evidence of any of the vital elements in Section 222(4) of the Penal Code Law to justify the invocation of the defence of sudden fight.
The word sudden denotes that the fight should be unexpected or unforeseen. In this case rather than being sudden and unforeseen, it was the Appellant who was the instigator, initiator and active proponent of the fight merely upon the inquiry of the deceased as to their presence in the house at that time of the night. The Appellant was clearly the aggressor in a fight which was in no way sudden, and in which he had the advantage and the upper hand knowing very well that he was armed with a lethal knife. Being the aggressor, he should not seek to take any benefit from his nefarious act which led to the termination of the life of an 18 year old young man like him, who had his whole life ahead of him. The law is trite that a man intends the natural consequences of his act. Where the Appellant proactively picked a fight and employed
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the use of a lethal weapon such as a knife to stab the the deceased on a vital part of his body, in this case his neck, it should come as no surprise to him that death resulted – Sani Idris V State (1981) 2 SC 1.
However, the Appellant in his confessional statement (Exhibits 3 and 3A), stated that after he challenged the deceased to a fight, it was the deceased who first hit him on his neck with his hand and in retaliation, he stabbed the deceased in the neck with his knife. But as aforesaid, in the course of his defence in Court, the accused totally retracted this statement and contended that he never engaged in any fight with the deceased and he also did not stab him. In fact, he totally denied even knowing the deceased. Notwithstanding this retraction, the learned trial Judge held that even without the confessional statement, the evidence of the prosecution witnesses, in particular, the evidence of PW1 and PW2 who witnessed the incident, was sufficient to establish beyond reasonable doubt that it was the Appellant and no other who stabbed the deceased on the night in question without any provocation. If anything, the Appellant provoked and insisted on
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a fight with the deceased. The blade of the knife which was broken as a result of the violence of the attack was found at the scene of crime beneath the body of the deceased (evidence of PW3 and PW4), and its handle was found in the room of the Appellant (evidence of PW4). It is quite significant that due to the amount of force applied in stabbing the deceased, the knife broke into two. Therefore, from all indications, it was a brutal attack.
From the entirety of the prosecution’s evidence, all it took for the Appellant to carry out such a vicious attack on the deceased was the deceased questioning him (Appellant) and his two friends as to why they were at his house at that time of the night. Apparently, the ego of the accused was bruised, he took offence, challenged the deceased to a fight, and while the PW1 and PW2 tried to dissuade the deceased from accepting the unwarranted and capricious challenge, the accused stabbed the deceased in the neck with a knife. The deceased never had a chance. The Appellant initiated a fight seemingly without good reason. He should therefore not benefit from his own aggression without any obvious justification.
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There was no evidence of any other verbal altercation and no evidence that tempers flared preceding the stabbing to suggest that it took place in the heat of passion in a sudden (unexpected and unforeseen) fight. The fact is that the deceased was unarmed and the accused took advantage of the fact that he was armed with a knife. Consequently, I am of the view that the learned trial Judge rightly held that neither the defence of provocation nor self-defence nor any other such defence was available to the Appellant, as the ingredients of these defences, as well as the ingredients of the defence of sudden fight raised in this Court, were neither specifically raised by the accused person nor were they disclosed by the evidence at the lower Court.
In respect of the defence of self defence, the vital ingredient that the stabbing took place in the heat of passion was certainly not disclosed in the evidence adduced before the lower Court. Instead, even if the Appellant’s extra-judicial statement is to be believed that the deceased hit him with his hand first, the Appellant, in his reaction, acted in a most cruel and unusual manner. The Appellant’s
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response of stabbing the deceased in the neck with a knife was totally disproportionate, cruel and unusual.
Finally, on the Appellant’s contention that the Appellant, being 18 years old at the time he committed the offence, was in his adolescence and so with the attendant hormonal changes, this fact should serve as a mitigating factor. I beg to differ. Instead, I agree with learned Counsel for the Respondent that the legal age of criminal responsibility being 13 years, the Appellant’s act did not fall within the protection provided under Section 50 of the Penal Code. Clearly, the Appellant is just playing a wild card as an act of desperation. The deceased, Adamu Manu, was also a budding young man of 18 years and his life was unduly cut short due to the reckless and cruel act of the Appellant. His youthful age cannot exonerate him from the consequences of his act.
Based on all these findings, I resolve the sole issue for determination against the Appellant and in favour of the Respondent.
In consequence of all the above, I find no merit in the Appeal. It fails and is dismissed. Accordingly, I affirm the Judgment of the High Court of
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Justice, Gombe State in suit no. GM/21C/2003 between The State V. Alhaji Babayo Kawu delivered on April 17, 2007 by Yakubu, J.
MUHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading beforehand the judgment just delivered by my learned brother J. H. Sankey, JCA PJ. My learned brother has properly addressed all the issues in contention. I have nothing more to add. I agree with the conclusion and adopt them as mine. I also abide by all consequential orders.
JAMES GAMBO ABUNDAGA, J.C.A.: I have had a preview of the Judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA. The Judgment presents no feature for dissent. Rather, it contains a meticulous consideration of all the germane issues for determination in the appeal, and a conclusion therein which cannot be faulted. My Lord has indeed left no space for any useful addition.
This appeal is therefore completely unmeritorious and deserves a resounding dismissal, and is hereby accordingly dismissed by me too. In consequence, the judgment of the lower Court delivered on 17th April, 2007 is hereby affirmed.
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Appearances:
H. Daddy Esq., holding the brief of J.L. Usoroh Esq.For Appellant(s)
Abubakar Jungudo, Esq., ACSC Gombe State Ministry of Justice, with him, Asma’u Mohammed Hassan Esq., PSCFor Respondent(s)