LAWAL v. STATE
(2022)LCN/17027(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, October 31, 2022
CA/ABJ/CR/529/2020
Before Our Lordships:
Biobele Abraham Georgewill Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
MUHAMMADU LAWAL APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
ESSENTIAL ELEMENTS OF THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH
In a charge alleging culpable homicide punishable with death under Section 221(a) of the Penal Code, the law is that the Prosecution has the onus, an onus which in criminal trials never shifts, to prove the essential elements of the offence of culpable homicide punishable with death, to wit:
i. The fact of the death of the deceased;
ii. That the death of the deceased was caused by the act of the Accused person;
iii. That the act of the Accused was intentional with knowledge that death or grievous bodily harm was the probable result.
See Section 221 of the Penal Code Cap 94 Laws of Niger State 1989. See also Sa’adu Deriba (Driver) V. The State (2016) LPELR – 40345 (CA) per Sir Biobele Abraham Georgewill JCA. See also Alhaji Mua’zu Ali V. The State (2015) 5 SCM 26. See also Tajudeen Iliyasu V. The State (2015) 11 NCC 300, Uguru V. The State (2002) LPELR 3325 (SC) and Umar V. The State (2014) 238 LRCN 141.
However, it must be pointed out for once that in proving the guilt of an Accused person, the Prosecution has open to it three basic types of evidence with which to prove the guilt of accused person, namely; i: Confessional statement; ii: Circumstantial evidence and iii: Evidence of eye witness. See That the act of the Accused was intentional with knowledge that death or grevious bodily harm was the probable result. See Section 221 of the Penal Code Cap 94 Laws of Niger State 1989. See also Sa’adu Deriba (Driver) V. The State (2016) LPELR – 40345 (CA) per Sir Biobele Abraham Georgewill JCA, Saheed V. State (2018) LPELR – 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Abu V. State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA, Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103, Lori V. The State (1980) 8 – 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666, Peter Igho V. The State (1978) 3 SC 87, Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349. PER GEORGEWILL, JC.A.
WHETHER OR NOT THERE IS A PARTICULAR NUMBER OF WITNESS REQUIRED TO BE CALLED TO CONVICT AN OFFENCE
In doing so, it need not call a horde of witnesses since in law the credible and cogent evidence of a sole witness will be sufficient to secure a conviction for an offence no matter the heinous nature of the offences charged in so far as corroboration is not required by law. Thus, once the essential ingredients of the offence charged is sufficiently established by the evidence put forward by the Prosecution, it is immaterial that a particular witness was not called or that a particular document was not tendered in evidence. See Alhaji Muadzu Ali V. The State (2015) 5 SCM 26. See also Odili V. The State (1977) 4 SC 1, Oguonzee V. The State (1998) 5 NWLR (pt. 551) 521, Alonge V. IGP. (1959) 4 FSC 203, Ibodo V. The State (1975) 9 – 11 SC (Reprint) 80, Abeke Onafowokan V. The State (1987) 1 NWLR (Pt. 61) 538. See also Akpabio V. The State (1994) 7 NWLR (Pt. 359) 635, Idiok V. The State (2008) 13 NWLR (Pt. 1104) 225 AT Pp. 250-251. See also Olayinka V. The State (2007) 4 SCNJ 53 AT p. 73, The State V. Ajie (2000) 3 NSCQR 53 AT p. 66, Adebayo Rasaki V. The State (2014) 10 NCC 1. PER GEORGEWILL, JC.A.
THE POSITION OF LAW ON THE BEST WAY OF PROVING THE DEATH OF A DECEASED PERSON
In coming to the above conclusion that the Respondent successfully proved as fact that the deceased, Ibrahim Zaki, had died, I am aware that in law, the best way of proving the death of the deceased in criminal trials such at the instant one is either a medical certificate of death showing that the deceased is dead and the cause of death or the viva voce evidence of the Medical Doctor who performed an autopsy on the body of the deceased to testify to the fact that the deceased had died and what in his finding was the cause of death of the deceased. However, whenever the circumstances revealed in evidence show that the deceased had met his death simultaneously with an attack on him with a lethal weapon or so soon thereafter, then the law is that neither a medical evidence of his death by means of a death certificate nor post mortem report would be essential as being a sine qua non for the proof of both death and cause of death. In such circumstances, the Court could infer the cause of death from the proved circumstances. In Ben V. State (2006) 16 NWLR (Pt. 1006) 582, the Supreme Court had held inter alia thus:
“The position of the law in this respect had been stated in numerous cases. It is that in cases where a man was attacked with lethal weapon and he died on the spot, cause of death can properly be inferred that the wound inflicted caused the death. Put in another form, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide case. Such a situation arises where death was instantaneous or nearly so.”
See also Abu V. The State per Sir Biobele Abraham Georgewill JCA, Oforlete V. The State (2000) 12 NWLR (Pt. 681)415, Tonara Bakuri V. The State (1965) NMLR 163 AT p. 164, Eric Uyo V. Attorney – General of Bendel State (1986) 1 NWLR (Pt. 17) 418, Onwumere V. The State (1991) 4 NWLR (Pt. 186) 428, Nwachukwu V. The State (2002) 12 NWLR (Pt. 782) 543, Aiguoreghian V. State (2004) 3 NWLR (Pt. 860) 367. PER GEORGEWILL, JC.A.
WHETHER OR NOT IT IS EVERY MINOR INACCURACY THAT GOES TO THE ISSUE OF A PARTIES CASE
However, in law minor inaccuracies or discrepancies not going to the root of the case of the parties may not go to any issues. However, crucial inconsistencies and/or contradictions touching on the substance of the case of the Prosecution against an Accused person would raise reasonable doubt, and which must be resolved in favour of the Accused person. Thus, any reasonable doubt raised as a result of substantial inconsistencies or contradictions in the evidence led by the Prosecution must necessarily be resolved in favour of the Accused person. See Sa’adu Deriba (Driver) V. The State (2016) LPELR – 40345 (CA) per Sir Biobele Abraham Georgewill JCA. See also Saheed V. State (2018) LPELR – 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Madu V. The State (2012) LPELR – 122009 (SC), Famakinwa V. The State (2012) LPELR 972010 (CA), Umar V. The State (1988) LPELR 171986 (SC). PER GEORGEWILL, JC.A.
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Federal Niger State, Kontagora, Division, Coram: A. Abdullahi Mika’ilu J, in Charge No. NSHC/KG/5C/2016: The State V. Muhammadu Lawal delivered on 23/11/2018, in which the Appellant was convicted of culpable homicide punishable with death contrary to Section 221 of the Penal Code and sentenced to death.
On 15/6/2020, the Appellant obtained the leave of this Court to file the Notice of Appeal which Notice of Appeal was filed on 8/6/200 on three grounds of appeal. See pages 92 – 97 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 10/7/2020. Subsequently, an Amended Notice of Appeal on four grounds was filed 5/2/2021 with the leave of this Court but was deemed as properly filed on 19/1/2021. The parties filed and exchange their briefs, which were duly adopted as their arguments at the hearing of this appeal on 26/9/2022. The Appellant was represented by B. O. Akinseye – George Esq., appearing with J. R. Olusola Esq. The Respondent was represented by M. S. Abdulaziz Esq. Principal State Counsel, Ministry of Justice, Minna, Niger State.
BRIEF STATEMENT OF FACTS
The Appellant, as Accused person was charged before the lower Court with the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code Law, Cap 124 Laws of Niger State, in that he was alleged to have caused the death of one Ibrahim Zaki by hitting him with a cutlass on the head. The case of the Respondent as the Prosecution was that the Appellant was alleged to have killed one Ibrahim Zaki on the 18th of March, 2015 and was consequently arrested, charged and arraigned before the High Court of Kontagora Division Niger State for the offence of Culpable Homicide punishable with death contrary to Section 221 of the Penal Code CAP 94 Laws of Niger State, 1989 (as revised). The Appellant pleaded not guilty to the charge and the prosecution opened its case and called four witnesses to wit, Sgt. TANKARI SHAYAU (PW1, his evidence is on pages 22 – 25 of the Record of Proceedings), DIJE IBRAHIM (PW2, her evidence on pages 37 – 39 of the Record of Proceedings), MAUDE IBRAHIM (PW3 his evidence on pages 40-41 of the Record of Proceedings) and Inspr. ADAMU SAIDU (PW4, his evidence is on pages 41-43 of the Record of Proceedings) and also tendered the confessional statement of the accused, same was admitted and marked as Exhibit “A” (Pages 6 and 7 of the Record of Proceedings) and thereafter called three other witnesses and closed its case. The Appellant (as Accused) opened his defense and testified along with other witnesses as witnesses for the defense and closed his defense. Upon the close of the case of all the parties, the parties filed their respective Final Written Addresses in the matter. Upon the adoption of the Final Written Addresses of the parties, the trial Court delivered its judgment convicting the Appellant for the offence of Culpable Homicide punishable with death as charged and sentenced the Appellant to death by hanging. Piqued by the decision of the trial Court, the Appellant filed this appeal against his conviction.
On his part, the case of the Appellant was that there was an altercation between the appellant’s sisters and the deceased’s son, one Maude Ibrahim, who testified as PW3, due to the fact that the deceased was alleged to be the mastermind behind the death of their father, one Haruna Muhammadu. However, during the altercation, PW3 attacked the Appellant’s sisters, by slapping the DW2 and hitting the DW3 on the head with a stick and she fell with the baby on her back. It was later reported that the baby died as a result of the impact of the fall. The Appellant arrived home just at the heat of the altercation and witnessed the incidence between his sisters and the PW3 and suddenly the deceased emerged from his house, armed with a cutlass and struck the Appellant with it on the neck, and on the spur of the moment, due to the pain, the Appellant retaliated and hit the deceased, who fell down and died.
At the trial, the Appellant pleaded not guilty and the matter proceeded to trial. At the hearing, the Respondent called four witnesses and tendered three Exhibits in evidence. In his defence, the Appellant testified on his own behalf and called two other witnesses. At the close of the trial, both parties waived their right to file any final written addresses, and the lower Court proceeded to deliver its judgment on 23/11/2018, in which it convicted and sentenced the Appellant to death, hence the appeal. See pages 71 – 91 and 92 – 97 of the Record of Appeal.
ISSUES FOR DETERMINATION
The Appellant formulated two issues for determination, namely:
1. Whether having regard to the evidence on record, the lower Court was right in holding that there is credible evidence sufficient to convict the Appellant? (Distilled from Grounds 1, 2 and 3)
2. Whether from the nature of evidence, the lower Court was right to have convicted the Appellant of the offence of culpable homicide punishable with death without first considering and making pronouncement on his defence of self – defence that is made out from the evidence on record? (Distilled from Ground 4)
The Respondent formulated two issues for determination, namely:
1. Whether the evidence of the Prosecution witnesses is hearsay evidence and whether the lower Court was right in relying on their evidence to convict the Appellant?
2. Whether the lower Court was right when it convicted the Appellant on his retracted confessional statement?
3. Whether based on the totality of evidence adduced the Respondent proved its case beyond reasonable doubt to warrant the conviction of the Appellant by the lower Court?
4. Whether the defence of self – defence raised by the Appellant would avail him?
My Lords, looking at the issues as distilled in the briefs of the parties and considering the facts as revealed in the evidence led vis a vis the offence with which the Appellant was charged by the Respondent, I am of the view that the proper issues for determination are the two issues as distilled in the Appellant’s brief, a consideration of which would involve a consideration of the four issues as distilled in the Respondent’s brief. However, I shall consider the two issues together and resolve them in one fell swoop.
ISSUES ONE AND TWO (TAKEN TOGETHER)
Whether having regard to the evidence on record, the lower Court was right in holding that there is credible evidence sufficient to convict the Appellant and whether from the nature of evidence, the lower Court was right to have convicted the Appellant of the offence of culpable homicide punishable with death without first considering and making pronouncement on his defence of self – defence that is made out from the evidence on record?
APPELLANT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellant had submitted inter alia that the Respondent has the burden of proving the elements of the offence of culpable homicide beyond reasonable doubt and contended that upon thorough review and proper evaluation of the entirety of the Respondent’s evidence led before the lower Court, most of which were hearsay evidence, it was clear that the Respondent failed to prove the guilt of the Appellant beyond reasonable doubt as required by law in that the evidence of PW1, PW2, PW3, PW4 and Exhibits A, B, for which the photographer was not called, and C tendered by the Respondent are not legal and credible evidence which the lower Court could rely on to validly convict the Appellant since the death of the deceased was not proved as required by law and urged the Court to hold that in law the mere fact that these evidence of evidence were not objected to at the trial for failure to meet the requirements of the law does not absolve these pieces of evidence of their obvious legal defects and to expunged and discountenanced the same, the lower Court having failed to do and to allow the appeal, set aside the perverse judgment of the lower Court and discharge and acquit the Appellant. Counsel referred to Section 83 (1), 84, 85 and 135(1) of the Evidence Act 2011, and relied on Ononuju V. The State (2015) All FWLR (Pt. 810) 1198 AAT p. 1223, Kolade V. State (2017) All FWLR (Pt. 889) 437 AT p. 460, Keystone Bank Ltd V. Shemomal (Nig.) Ltd (2016) All FWLR (Pt. 828) 957 AT p. 991, Joshua V. State (2009) ALL FWLR (Pt. 475) 1626 AT p. 1658, Akinbami V. State (2017) All FWLR (Pt. 897) 2018 AT pp. 2033 – 2034, Obot V. The State (2019) LPELR – 48172 (CA) AT pp. 14-16, Moses Etisi V. State (2018) All FWLR (Pt. 920) 33 AT pp. 66 – 67, Eyo Asuquo Effiong V. The State (2018) All FWLR (Pt. 944) 710 AT p. 731, Lateef V. FRN (2010) All FWLR (Pt. 539) 1171, Lambert V. Nigerian Navy (2006) 7NWLR (Pt. 980) 514, Olaoye V. Makanjuola (2018) All FWLR (Pt. 945) 866 AT p. 903, Ifaramoye V. State (2017) All FWLR (Pt. 917) 1551 AT p. 1604, Bisichi Tin Co. Ltd V. Commissioner of Police (1963) NNLR 71, Smart V. State (2016) All FWLR (Pt. 826) 548 AT p. 554, Dajo V. State (2018) All FWLR (Pt. 970) 1014 AT pp. 1035 – 1036, Ogboma Young V. Chevron Nigeria Limited (2014) All FWLR (Pt. 747) 620 AT p. 639, Dickson V. Sylva (2017) 8 NWLR (Pt. 1567) 167 AT p. 200.
It was also submitted that the evidence led by the Respondent through PW1, PW2, PW3 and PW4 were not only inconsistent and contradictory but also exposed the grave doubts in the allegation that the Appellant caused the death of the deceased and contended that in the entire facts and circumstances as revealed in the evidence in the printed record the conviction and sentence of the Appellant on the basis of an extra – judicial statement that was not corroborated by credible and independent evidence cannot stand in that in law though a trial Court can convict an Accused person on the strength of his confessional statement alone, yet the veracity of the said confessional statement must be tested with other facts legally admitted in evidence and urged the Court to hold that in the absence of any such independent credible evidence, the lower Court was wrong to have convicted the Appellant on his retracted extra – judicial statement alone and to allow the appeal, set aside the perverse judgment of the lower Court and discharge and acquit the Appellant. Counsel relied on Egwuche V. State (2018) LPELR – 43975(CA), Nwoye V. State (2018) LPELR – 46067 (CA), Princewill V. The State (1994) LPELR – 2926 (SC), Emmanuel Ugboji V. The State (2018) All FWLR (Pt. 926) 68 AT p. 104, Jimoh V. State (2014) All FWLR (Pt. 733)1855, Dogo V. State (2013) All FWLR (Pt. 686) 524, Obosi V. State (1985) NMLR 119, Onuoha V. State (1987) 1 All NLR 150, Emmanuel V. The State (2017) LPELR – 43550 (CA), Osuagwu V. State (2009) 1 NWLR (Pt. 1123) 523, Omopupa V. The State (2007) LPELR – 8571 (CA), Ndidi V. The State (2007) All FWLR (Pt. 381) AT pp. 1650 – 1651, Essien V. State (2018) All FWLR (Pt. 939) 1993 AT p. 2004, Natsaha V. State (2017) 18 NWLR (Pt. 1596) 38 AT pp. 64 – 65.
On issue two, learned counsel for the Appellant had submitted inter alia that the lower Court erred in law in failing to consider and reach a decision on the Appellant’s defence of self – defence and contended that in law if the lower Court had considered the evidence showing glaringly the self-defence of the Appellant leading to the alleged offence laid against the Appellant, it would not have arrived at the perverse finding of guilt against the Appellant and would have rather as required of it by law discharged and acquitted the Appellant and urged the Court to hold that the failure of the lower Court to consider the defence of self – defence put up by the Appellant his resultant conviction and sentence for culpable homicide punishable with death was perverse and occasioned substantial miscarriage of justice and to allow the appeal, set aside the said judgment and discharge and acquit the Appellant. Counsel referred to Sections 59, 60 and 221 of the Penal Code Cap. 89, Laws of Northern Nigeria, 1963 as applicable in Niger State, and relied on Alfa v. State (2016) LPELR – 40552(CA), Namsoh V. State (1993) 5 NWLR (Pt. 292) 129 AT p. 143, Aliyu V. State (2013) LPELR – 20748 (SC), Maeze V. State (2004) All FWLR (Pt. 202) 1920, Ukpe V. The State (2002) FWLR (Pt. 103) 416, Kwaele V. State (2003) FWLR (Pt. 159) 304, Laoye V. The State (1985) 2 NWLR (Pt.10) 8, Odu V. State (2001) 10 NWLR (Pt. 722) 668, Mallelan V. State (2017) LPELR – 43034 (CA).
RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Respondent had submitted inter the lower Court right when it convicted the Appellant based on the credible evidence of Respondent’s witnesses and contended in law eye witness evidence is not sine quo non for conviction of an Accused person since the Respondent had open to it any one of the following ways, direct eye – witness account, confession and circumstantial evidence to prove the guilt of an Accused person and urged the Court to hold that the evidence of PW1, the IPO, being the product of his investigation as well as the evidence of PW2 were not a hearsay evidence and coupled with the direct and positive confession of the Appellant to the commission of the Crime, which was admitted in evidence as Exhibit A without any objection and notwithstanding his denial of same later in his evidence which was of no legal consequences, and even without Exhibit B, the photograph of the deceased assuming it was wrongfully admitted in evidence but of which it was not, the lower Court was perfectly right to have convicted the Appellant for the offence of culpable homicide punishable by death for the killing of the deceased and to dismiss the appeal and affirm the sound judgment of the lower Court. Counsel referred to Section 84 (1) and 135 (1) of the of the Evidence Act 2011 and relied on Ogie V. State (2017) 16 NWLR (Pt. 1591) 287 AT p. 298, Alo V. The State (2015) LPELR – 24404 (SC), Olaoye V. State (2018) LPELR – 43601 (SC), Kamila V. State (2018) LPELR – 43603 (SC), Yahaya V. State (2005) NCC 120 AT p. 123, Shade V. State (2005) 22 NSCQR 756, Adegbite V. State (2017) LPELR 42585 (SC).
On his issue two, learned counsel for the Respondent had submitted inter alia in law a Court can validly convict an Accused person solely on his retracted confessional statement since the confessional statement of an Accused person is admissible so long as it is voluntary and complied with the permissible methods of taking statements from Accused persons and contended that in law the mere fact that an Accused person, such as the Appellant before the lower Court, resiled or denied making the statement does not render such statement inadmissible and urged the Court to hold that the lower Court was perfectly in order when it convicted the Appellant on the basis of his retracted confessional statement as in Exhibit A and to dismiss the appeal and affirm the conviction of the Appellant for the offence of culpable homicide. Counsel referred to Section 221 of the Penal Code and relied on Amos V. State (2018) LPELR – 44694 (SC), FRN V. Iweka (2013) 3 NWLR (Pt. 1341) 285 AT pp. 330 -331, John V. State (2017) 16 NWLR (Pt. 1591) 304 AT p. 352, John V. State (2011) 18 NWLR (Pt. 1278) 353 AT pp. 385 – 386.
It was also submitted that the lower Court did not only base the conviction of the Appellant on his retracted confessional statement but made use of other corroborative evidence as were available in arriving at its decision to convict the Appellant and contended that the evidence of PW2 corroborated the confessional statement of the Appellant as to render it probable and urged the Court to hold that the evidence of Respondent’s witnesses were direct, positive and without equivocation and irresistibly pointed to the guilt of the Appellant as rightly held by the lower Court and to dismiss the appeal and affirm the judgment of the lower Court. Counsel relied on Bassey V. State (2012) 12 NWLR (Pt. 1314) 209 AT p. 227, Lasisi V. State (2013) 9 NWLR (Pt. 1358) 74 AT pp. 93 – 94, Galadima V. State (2013) NWLR (Pt. 1333) 610 AT p. 632, Amos V. State (2020) LPELR – 49663 (CA), Olalekan V. State (2001) LPELR – 2561 (SC), Jimoh V. State (2014) 3 SCNJ 27, Ugwu V. State (2020) LPELR – 50207 (CA) Bako V. State (2018) LPELR – 44479 (CA).
On his issue three, learned counsel for the Respondent had submitted inter alia that on the strength of the evidence of PW1, PW2 and Exhibit A the Respondent proved its case beyond reasonable doubt to warrant the conviction of the Appellant and contended that in law proof beyond reasonable doubt is not proof beyond the shadow of doubt and urged the Court to hold that the fact of the death of deceased, the cause of the death of the deceased and that fact that the death of the deceased was intentionally caused by the Appellant were amply established in the evidence of the PW2 and the confessional statement of the Appellant in Exhibit A and to dismiss the appeal for lacking in merit and affirm the judgment of the lower Court. Counsel referred to Section 135 (1), (2) and (3) of the Evidence Act 2011 and relied on Afolalu V. State (2010) 16 NWLR (Pt. 1220) 584 AT p. 607, Miller V. Minister of Pensions (1947) 2 All ER 372.
On his issue three, learned counsel for the Respondent had submitted inter alia that the defence of self – defence, though one of the commonest defences usually raised by Accused person in homicide cases, did not avail the Appellant and contended that in the instant case in which the Appellant a young man of 27 years retaliates to the attack of an old and weaker man can not be held to be proportionate when on the evidence it was the Appellant that came into the house of the deceased angry and with a cutlass and who had struck the Appellant in the self – defence and urged the Court to hold that the defence of self – defence would have readily availed the deceased and not the Appellant who was indeed the aggressor and to dismiss the appeal and affirm the judgment of the lower Court. Counsel relied on Braide V. The State (1997) 5 NWLR (Pt. 5041) 141 AT p. 149 SC, Njoku V. State (1993) 7 SCNJ 36, Amala V. State (2004) 18 NSCQR 834, Nkpuma V. State (1999) 9 NWLR (Pt. 317) 374, Omoregie V. State (2008) 12 NWLR (Pt. I111)1, Nwede V. State (1995) 3 NWLR (Pt.384) 385, Nwede V. State (1985) 3 NWLR (Pt 13) 374.
RESOLUTION OF ISSUES ONE AND TWO
My Lords, the first issue deals with the essential ingredients required to be proved to sustain a conviction for the offence of culpable homicide punishable with death with which the Appellant was charged by the Respondent. In a charge alleging culpable homicide punishable with death under Section 221(a) of the Penal Code, the law is that the Prosecution has the onus, an onus which in criminal trials never shifts, to prove the essential elements of the offence of culpable homicide punishable with death, to wit:
i. The fact of the death of the deceased;
ii. That the death of the deceased was caused by the act of the Accused person;
iii. That the act of the Accused was intentional with knowledge that death or grievous bodily harm was the probable result.
See Section 221 of the Penal Code Cap 94 Laws of Niger State 1989. See also Sa’adu Deriba (Driver) V. The State (2016) LPELR – 40345 (CA) per Sir Biobele Abraham Georgewill JCA. See also Alhaji Mua’zu Ali V. The State (2015) 5 SCM 26. See also Tajudeen Iliyasu V. The State (2015) 11 NCC 300, Uguru V. The State (2002) LPELR 3325 (SC) and Umar V. The State (2014) 238 LRCN 141.
However, it must be pointed out for once that in proving the guilt of an Accused person, the Prosecution has open to it three basic types of evidence with which to prove the guilt of accused person, namely; i: Confessional statement; ii: Circumstantial evidence and iii: Evidence of eye witness. See That the act of the Accused was intentional with knowledge that death or grevious bodily harm was the probable result. See Section 221 of the Penal Code Cap 94 Laws of Niger State 1989. See also Sa’adu Deriba (Driver) V. The State (2016) LPELR – 40345 (CA) per Sir Biobele Abraham Georgewill JCA, Saheed V. State (2018) LPELR – 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Abu V. State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA, Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103, Lori V. The State (1980) 8 – 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666, Peter Igho V. The State (1978) 3 SC 87, Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.
What then are the pieces of evidence led by the parties on these essential element of the offences charged and what are the conclusions reached thereon by the Court below in its judgment? I have taken time to painstakingly review and evaluate the entirety of the oral evidence of PW1, PW2, PW3 and PW4, that testified in support of the case of the Respondent against the Appellant and the Exhibits A, B and C tendered by the Respondents. I have also painstakingly reviewed and evaluated the entirety of the oral evidence of the Appellant as DW1 and DW2 and DW3, that testified in support of the defence of the Appellant to the charge as laid against him by the Respondent. I have also taken time to review and consider the submissions of learned counsel for the parties in the light of the findings in the judgment of the lower Court, in which it was held inter alia thus:
“On the 1st element of the offence, it is not in dispute that Ibrahim Zaki was a human being and has died. The eye witness account of PW2 and evidence elicited from DW2 as well as Exhibits A and B have sufficiently established that Ibrahim Zaki (victim named in the charge) has died…It is my considered view that the death of Ibrahim Zaki has been conclusively established even though no medical evidence was tendered in respect thereof… On the second element… there is ample evidence in the record for suggesting that the deceased died directly from the act of the Accused person. There is a confessional statement in which he admitted that he machete the deceased on the head who died on the spot… Exhibit A, confessional statement of the accused which was admitted in evidence without any objection from the defense is sufficient to sustain or ground a conviction against him. Although the Accused at the trial impliedly retracted his confession by saying that he was not at the scene when the deceased was hacked to death, the statement does not become inadmissible… I must say that the confessional statement has been corroborated by the evidence of PW2 and DW2 (Eye – witnesses) who witnessed how the Accused person gruesomely hacked the deceased with a cutlass… I am also convinced that the statement in Exhibit A is consistent with other facts which have been ascertained and proved… On the third and last ingredient of the offence charged… the guilty mind of the Accused person or otherwise can be ascertained from evidence of PW1, Exhibit A, the weapon (Exhibit C) used in the commission of the offence and the manner the weapon was used. From the above piece of evidence, it is glaring that the Accused conceived the idea to kill the deceased before he struck him with the cutlass… The Court can safely infer from the above evidence that the Accused person’s act was premeditated. The inevitable conclusion is that the Accused had the intention to kill the deceased and he indeed achieved his mission.” See pages 71 – 88 of the Record of Appeal.
Now, on the first and second elements of the offence of culpable homicide, requiring the Respondent, as the Prosecution before the lower Court to prove the fact of the death as well as the cause of death of the deceased, Ibrahim Zaki, there is the evidence of PW2, the wife of Ibrahim Zaki, and eye witness to the incident who had testified inter alia thus:
“I was present when they killed my husband. As the accused machete my husband with cutlass, I used my hand to protect him and as a result, he struck the cutlass and chopped one of my fingers of the right hand. This is my hand. My finger is completely cut off as the Court can see. The accused person was the one that struck me with the cutlass and chopped off one of my fingers. The name of my husband that was killed by the accused is Ibrahim.”
Even on the part of the Appellant, there is the evidence of DW2, who had testified inter alia thus:
“Because of the pain, the accused also took a cutlass and struck Mohammed Zaki (deceased) on the head. I was present when all these happened. Mohammed Zaki (deceased) died as result of the cutlass strike meted out on him by the Accused person.”
On the part of the Appellant himself, there is his extra-judicial statement made to the Police and which statement was admitted in evidence without any objection, in which it is stated inter alia thus:
“That five months ago, my father Haruna is not well…one native Doctor on Gadon Kaya M of Ukuru village continue to treating him, when giving medicine to my father, he continued mentioned Ibrahim Zaki is going to kill him, that he witch his father to death and I went to Ibrahim Zaki house and told him to come and hear what my father saying against him, in order to take action but he refused and I mentioned that if my father die I will take action against him. On 18/3/2015 at about 09:00 hours my father Haruna Muhammadu come did and before my father was buried I went into Ibrahim Zaki house and machete on his head and die on the spot.”
There is also Exhibit B which was a still photograph of a corpse alleged to be that of the deceased, Ibrahim Zaki. Regrettably, the maker was not called to even merely identify whose corpse was that. I cannot but agree with the vehement contention of learned counsel for the Appellant, and without even bothering myself with the issue of whether or not Exhibit B is a computer generated document within the meaning and context of Section 84 of the Evidence Act 2011, that Exhibit B produced in evidence by PW4, without any proper foundation laid as to the whereabout of the maker was inadmissible in evidence and ought not to have been admitted in evidence and relied upon by the lower Court in reaching any of its decisions in the judgment appealed against. However, I am also minded to agree with the apt submission of learned counsel for the Respondent that Exhibit B even if expunged and discountenanced, as I have already held above, was of no moment to the correctness or otherwise of the decisions of the lower Court. In other words, whether or not the decision of the lower Court was correct can be determined with reference to the other pieces of admissible evidence before the lower Court as in the Record of Appeal.
My Lords, on the strength of the evidence before the lower Court as regard the first and second essential elements of the offence of culpable homicide punishable with death, did the Respondent prove as required of it by law these first two essential elements of the offence with which the Appellant was charged and was the lower Court right when it held in the affirmative that the Respondent proved these first two essential elements of the offence of culpable homicide punishable with death against the Appellant? Now to succeed, the Respondent as the Prosecution must lead credible evidence establishing the essential ingredients of the offence charged. In doing so, it need not call a horde of witnesses since in law the credible and cogent evidence of a sole witness will be sufficient to secure a conviction for an offence no matter the heinous nature of the offences charged in so far as corroboration is not required by law. Thus, once the essential ingredients of the offence charged is sufficiently established by the evidence put forward by the Prosecution, it is immaterial that a particular witness was not called or that a particular document was not tendered in evidence. See Alhaji Muadzu Ali V. The State (2015) 5 SCM 26. See also Odili V. The State (1977) 4 SC 1, Oguonzee V. The State (1998) 5 NWLR (pt. 551) 521, Alonge V. IGP. (1959) 4 FSC 203, Ibodo V. The State (1975) 9 – 11 SC (Reprint) 80, Abeke Onafowokan V. The State (1987) 1 NWLR (Pt. 61) 538. See also Akpabio V. The State (1994) 7 NWLR (Pt. 359) 635, Idiok V. The State (2008) 13 NWLR (Pt. 1104) 225 AT Pp. 250-251. See also Olayinka V. The State (2007) 4 SCNJ 53 AT p. 73, The State V. Ajie (2000) 3 NSCQR 53 AT p. 66, Adebayo Rasaki V. The State (2014) 10 NCC 1.
It must be pointed out at once that in proving the guilt of an Accused beyond reasonable doubt, and I agree on this with the submission of the learned counsel for the Respondent, it does not impose on the Respondent any greater duty than it simply entails, which is proof of all the essential ingredients of the offence(s) charged and not proof beyond all iota of doubt or proof to the hilt. See Sa’adu Deriba (Driver) V. The State (2016) LPELR – 40345 (CA) per Sir Biobele Abraham Georgewill JCA. See also Saheed V. State (2018) LPELR – 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Emmanuel Eke V. The State (2011) 200 LRCN 143 AT p. 149.
However, in law minor inaccuracies or discrepancies not going to the root of the case of the parties may not go to any issues. However, crucial inconsistencies and/or contradictions touching on the substance of the case of the Prosecution against an Accused person would raise reasonable doubt, and which must be resolved in favour of the Accused person. Thus, any reasonable doubt raised as a result of substantial inconsistencies or contradictions in the evidence led by the Prosecution must necessarily be resolved in favour of the Accused person. See Sa’adu Deriba (Driver) V. The State (2016) LPELR – 40345 (CA) per Sir Biobele Abraham Georgewill JCA. See also Saheed V. State (2018) LPELR – 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Madu V. The State (2012) LPELR – 122009 (SC), Famakinwa V. The State (2012) LPELR 972010 (CA), Umar V. The State (1988) LPELR 171986 (SC).
It is true that before the lower Court there was no medical evidence of the cause of death of the deceased. The lower Court rightly averted its mind to this situation but there weas surfeit of evidence from the PW2, DW2 as well as the Appellant that the deceased had died and that he died on the spot upon being struck on the head by the Appellant with a cutlass. I agree with the lower Court, and I hereby affirm its finding as correct, that the Respondent proved that the deceased, Ibrahim Zaki, had died. Having found as fact that the deceased, Ibrahm Zaki, had been proved by the Respondent to have died, the next essential element is whether it was the act of the Appellant that caused the death of the deceased? In other words, did the Respondent proved as fact what was the cause of death of the deceased and that it was linked to that act of the Appellant? In law, it is not enough in a charge alleging culpable homicide punishable with death the fact that the fact of death of the deceased had been proved, but the Respondent must go further to prove by credible and cogent evidence that it was the act of the Appellant that caused the death of the deceased, which is the second essential element of the offence of culpable homicide punishable with death.
In arriving at its decision on the second essential element of the offence of culpable homicide, the lower Court had relied principally on the evidence of the PW1, PW2, DW2 and Exhibit A, but we were urged by the learned counsel for the Appellant to expunge the evidence of PW1, the IPO, for being hearsay evidence. However, I though it must be pointed out at once that in law generally the evidence of an Investigation Police Officer or any other investigator, on the facts he had gathered in the course of investigation is not hearsay. See Akwara V. State (2019) LPELR – 49537 (CA) AT pp. 23 – 24, where it was stated inter alia thus:
“The poser in the circumstance should be whether the evidence of an investigating police officer as regards what he saw or discovered during an investigation is hearsay and therefore inadmissible. The Appellant cannot be seriously contending that the testimony of PW2 is hearsay. Evidence of an investigating Police Officer is never to be tagged as hearsay.”
Looking at and considering the evidence of PW2, DW2 and the content of Exhibit A, it seems clear to me that the Respondent proved by credible evidence that the deceased died on the spot upon being hit with a machete by the Appellant. It is very safe in the circumstances, and I hold that the lower Court was right, to hold that the Appellant act of hitting the deceased, Ibrahim Zaki, with the machete on his head was the cause of the death of the deceased. in law, in the proved circumstances of this case, there was, in my finding, absolutely no necessity for any medical evidence to prove the cause of death.
In coming to the above conclusion that the Respondent successfully proved as fact that the deceased, Ibrahim Zaki, had died, I am aware that in law, the best way of proving the death of the deceased in criminal trials such at the instant one is either a medical certificate of death showing that the deceased is dead and the cause of death or the viva voce evidence of the Medical Doctor who performed an autopsy on the body of the deceased to testify to the fact that the deceased had died and what in his finding was the cause of death of the deceased. However, whenever the circumstances revealed in evidence show that the deceased had met his death simultaneously with an attack on him with a lethal weapon or so soon thereafter, then the law is that neither a medical evidence of his death by means of a death certificate nor post mortem report would be essential as being a sine qua non for the proof of both death and cause of death. In such circumstances, the Court could infer the cause of death from the proved circumstances. In Ben V. State (2006) 16 NWLR (Pt. 1006) 582, the Supreme Court had held inter alia thus:
“The position of the law in this respect had been stated in numerous cases. It is that in cases where a man was attacked with lethal weapon and he died on the spot, cause of death can properly be inferred that the wound inflicted caused the death. Put in another form, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide case. Such a situation arises where death was instantaneous or nearly so.”
See also Abu V. The State per Sir Biobele Abraham Georgewill JCA, Oforlete V. The State (2000) 12 NWLR (Pt. 681)415, Tonara Bakuri V. The State (1965) NMLR 163 AT p. 164, Eric Uyo V. Attorney – General of Bendel State (1986) 1 NWLR (Pt. 17) 418, Onwumere V. The State (1991) 4 NWLR (Pt. 186) 428, Nwachukwu V. The State (2002) 12 NWLR (Pt. 782) 543, Aiguoreghian V. State (2004) 3 NWLR (Pt. 860) 367.
Now, having held that the Respondent proved and the lower Court was right when it so held that the Respondent proved the first two essential elements of the offence of culpable homicide against the Appellant, the next issue is whether the Respondent proceeded forward to prove the third element of the offence alleged against the Appellant, namely: That the act of the Accused was intentional with knowledge that death or grievous bodily harm was the probable result. See Section 221 of the Penal Code Cap 94 Laws of Niger State 1989. See also Sa’adu Deriba (Driver) V. The State (2016) LPELR – 40345 (CA) per Sir Biobele Abraham Georgewill JCA; Abu V. The State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA.
In proof of this very crucial element of the offence of culpable homicide, the Respondent relied heavily on the contents of Exhibit A, the extra-judicial statement of the Appellant to the Police. In its judgment, the lower Court relied heavily on the contents of Exhibit A, along with the evidence of PW1, PW2, PW3 and DW2 in arriving at its finding that the Respondent also proved the third most essential element of the offence of culpable homicide against the Appellant.
Now, it is on the third element, of all the three essential elements, that the parties to this appeal had joined the most contentious issue in this appeal. In other words, whether or not the Respondent proved the mental element of the offence of culpable homicide. So, did the content of Exhibit A, prove the third element of the offence of culpable homicide as was held by the lower Court? What then in law is a confessional statement in the light of the content of Exhibit A, the extra-judicial statement of the Appellant? A confessional statement is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. Where such confession is voluntary and relevant, it is admissible against the person who made it. See Sections 28 and 29 of the Evidence Act 2011. See also Akhilomen V. State (2017) LPELR – 42668 (CA) AT pp. 29 per Mudashiru Nasiru Oniyangi, JCA. See also Nwachukwu V. State (2002) 7 SC (Pt. 1) 124 AT p. 136, State V. Olashehu Salawu (2011) 12 SC (Pt. IV) 191 AT pp. 212 – 217, FRN V. Iweka (2001) 11-12 SC (Pt. 1) 109 AT pp. 150 – 154.
By Section 60 of the Penal Code Penal Code Cap. 89, Laws of Northern Nigeria, 1963 as applicable in Niger State, it is provided thus:
“Every person has a right, subject to the restrictions hereinafter contained, to defend his own body and the body of any other person against any offence affecting the human body.”
In his extra-judicial statement to the Police, Exhibit A at page 7 of the Record of Appeal, the Appellant had stated inter alia thus:
“On reaching his house, he, Ibrahim Zaki now deceased took his cutlass and stabbed me on my shoulder three times but God did not allow it to enter my body or inflicted injuries on my body. Hence, I took my cutlass and machete him on the back of his head. He fell down and died on the spot.”
The DW2 supported the plea of self-defence of the Appellant at pages 56 – 57 of the Record of Appeal:
“At the time, the accused was on his way back and he met the altercation. As a result of the hit Fatima and child were injured and so later died after the dead of our father As I said, at the time of the incident, the accused return from Daban Baure. The Accused asked what happened that Maude hit his sister Mohammed Zaki (deceased) answered the Accused from his house, he then came out with a cutlass and strike the Accused on the neck but the cutlass could not penetrate. Because of that the Accused also took a cutlass and struck Mohammed Zaki (deceased).”
My Lords, in law the plea of self-defence posits that a person can act in ways that would otherwise be unlawful to prevent the commission of a crime. It is defined as a use of force to protect oneself, one’s family or one’s property from a real or threatened attack. Thus, a person is justified in using a reasonable amount of force in self defence, if such a person believes that the danger of bodily harm is imminent and that force is necessary to avoid the danger. The defense of self-defense is an exculpatory defense where it avails an Accused person and thus by its operation negatives the intention or mens rea to cause grievous bodily harm as is required to constitute the third essential element of the offence of manslaughter. However, to avail oneself of this defense, it must be apparent on the face of the credible evidence led that Accused person, the Appellant as in the instant appeal:
i. Must have been unlawfully assaulted and must not have provoked the assault.
ii. The nature of the assault must be such as caused reasonable apprehension of death and grievous harm;
iii. There must be a belief on reasonable grounds that the accused cannot otherwise preserve his life.
See Sampson Nkemji Uwaekweghinya V. State (2005) 9 NWLR (Pt. 930) 227 AT p. 250. See also Braide V. The State (1997) 5 NWLR (Pt. 5041) 141 AT p. 149, Saheed V. State (2018) LPELR 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Njoku V. State (1993) 7 SCNJ 36, Amala V. State (2004) 18 NSCQR 834, Omoregie V. State (2008) 12 NWLR (Pt. III1) 1 Nwede V. State (1995) 3 NWLR (Pt.384) 385, Nwede V. State (1985) 3 NWLR (Pt 13) 374, Umana V. The State (1972) 4 SC 164, Bassey V. The State (1963) 1 All NLR 280, Chukwu V. State (2012) LPELR – 9829 (SC), Uwaekweghinya V. State (2005) 9 NWLR (Pt. 930) 227.
The defense of self – defense is by itself a complete defense and thus avails an Accused person in a criminal trial for murder etc once it is shown by credible evidence that the Accused acted in self – defence to save his own life and body from bodily harm, or injury from the deceased. However, to successfully rely on a plea of self-defense it must be shown by the person relying on the plea of self-efense that he reasonably believed that there was no other way of saving himself from death or grievous bodily harm other than by using such force as he did. The issue of disengagement would depend on the peculiar circumstances of each case. Thus sometimes it may be possible for a person being attacked to run away from his assailant and at times it may be impossible for the person being attacked to physically withdraw or save himself except by resort to available means of self-defense. In all, one thing seem certain and that is there must some form or measure of proportionality between the threat and the response for the defense of self-defense to avail an Accused person charged with for example murder as in the instant appeal. In Adeyinka Albert Laoye V. The State (1985) 2 NWLR (Pt. 10) 832 AT pp. 843 – 844, the Supreme Court had considered the issue of proportionality of force used in self-defense and opined inter alia thus:
“The degree of force used is only relevant while one is considering the circumstances of the encounter so as to determine whether there were reasonable grounds for the prisoner’s belief that his life is in danger. Once it is agreed that there were such grounds, the amount of force used by the prisoner to preserve his own life becomes immaterial. In a fight to the death, it is only expected that once the prisoner believes on reasonable grounds that his life is in danger he would go all out to preserve his life, and that may entail making sure that the deceased is dead beyond any question.
See also Sampson Nkemji Uwaekweghinya V. State (2005) 9 NWLR (Pt. 930) 227 AT p. 250, Saheed V. State (2018) LPELR – 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Umana V. The State (1972) 4 SC 164, Bassey V. The State (1963) 1 All NLR 280, Chukwu V. State (2012) LPELR – 9829 (SC).
My Lords, the onus was squarely on the Respondent to prove not only the fact of death of the deceased and the cause of death of the deceased but also that the death of the deceased was caused by the intentional act of the Appellant. In other words, it must be shown not only that the deceased had died, but also that he died as a result of the act of the Appellant and which act or omission was done intentionally with the knowledge that death was the probable or likely consequences of the act.
In all criminal trials, it is incumbent upon the trial Court to consider all the defenses put up by the accused person either expressly or impliedly as apparent on the evidence and therefore, no matter whether the defense is full of figments of imagination, or is fanciful or bereft of reason and or based on lies or even doubtful, the Court must not be weary to give them due consideration. An Accused person is in law entitled to all the defenses open and available to him on the evidence before the Court whether specifically raised by him or not and thus must be fully considered by the Court. See Olayinka Ayeni V. The People of Lagos State (2016) LPELR-41440(CA) per Sir Biobele Abraham Georgewill JCA. See also Saheed V. The State (2018) LPELR – 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Abu V. The State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA, Ani V. The State (2003) 11 NWLR (Pt. 830)142, Green V. Queen (1955) 15 WACA 73, R. V. Bramah (1945) 11 WACA 49, Nwuzoke V. The State (1988) 1 NWLR (Pt. 72) 529, R. V. Bio (1945) 11 WACA 46 AT p. 48, Asanya V. State (1991) 3 NWLR (Pt. 180) 442, Ekpenyong V. The State (1993) 5 NWLR (Pt. 295) 513, Grace Boms V. The State (1971) All NLR 335.
There is evidence from the Appellant and one of his witnesses, DW2, which was neither cross-examined upon nor discredited and therefore, had remained unchallenged and uncontroverted that the Appellant was attacked with a cutlass thrice by the deceased but it could not penetrate his body and in turn the Appellant struck the deceased on the head which led to the death of the deceased on the spot. Curiously, neither the Appellant nor DW2 were cross-examined on this crucial issue of attack on the Appellant with machete by the deceased. Worse, still it never even merited a mention in the entirety of the judgment of the lower Court. In law, where evidence given by a party to a proceeding is not challenged by the adverse party as in this case, it is deemed admitted and the Court ought to act positively on it. See Okereke & Anor V. Aba North LGA (2014) LPELR – 23770 (CA) AT p. 38. See also Odulaja V. Haddad (1973) 11 SC 35, Nwabuoku V. Ottih (1961) 2 SCLR 232.
My Lords, it is the primary function of the trial Court to evaluate evidence and ascribe probative value to it having had the advantage of seeing and observing the witnesses as they testified. Where the trial Court fails to discharge that primary duty or does so unsatisfactorily by drawing the wrong inferences from the evidence led, the Appellate Court has the duty of interfering with the view to doing the justice any of the parties richly and manifestly deserves. Thus, the lower Court was under a duty to properly evaluate and appraise the evidence led by both the Respondent, as the Prosecution, and the Appellant, as the Defendant, as to all the ingredients of the offence charged, to determine whether or not they were established and the defenses raised and or apparent from the evidence, whether or not they were made out in favour of the Appellant. See Timothy Abu V. The State (2022) LPELR – 56902(CA) per Sir Biobele Abraham Georgewill JCA. See also Aliyu V. State (2013) LPELR – 20748 (SC).
See also Kwajaffa V. BON Ltd (2004) 13 NWLR (Pt. 889) 374, State V. Onyeukwu (2004) 14 NWLR (Pt. 893) 340 SC.
Now, under the Penal Code, where a person is killed as a result of the use of reasonably necessary force to such extent and in such circumstances as is permitted by law in one’s personal defence from unlawful violence or for the defence of property, the death is justifiable and does not violate the right to life. Such a defence, where it avails an accused person, justifies or excuses by law the act or omission of the accused thereby rendering him not liable for the offence charged. This operate as a complete defence to the charge where it is upheld. See Sections 59, 60, 65 and 66 of the Penal Code. See also Apugo V. State (2006) 16 NWLR (Pt. 1002) 227, Nwuzoke V. State (1988) 1 NWLR (Pt. 72) 529, Baridam V. State (1994) 1 NWLR (Pt. 320) 250, Laoye V. The State (1985) 2 NWLR (Pt.10) 8, Odu V. State (2001) 10 NWLR (Pt. 722) 668, Mallelan V. State (2017) LPELR – 43034 (CA).
In considering a plea of self defense, the Court must take into consideration the fact of whether the deceased was carrying any weapon at the time he was killed by an Accused person who relies on the plea of self – defense as such factor is very material to the determination of proportionality or otherwise of the action of the Accused person. Indeed, to be prepared at all times to defend oneself from harm or attack, so long as the means used in the self – defense is not disproportionate, is nothing unusual. See Osagie V. State (2018) LPELR – 46666 (CA) per Sir Biobele Abraham Georgewill JCA. See also John Mgboko V. The State (1972) LPELR – 1872 (SC). See also Stephen V. State (1986) NWLR (Pt. 46) 978, Uwagboe V. State (2008) 12 NWLR (Pt. 1102) 621, Omoregie V. State (2008) LPELR – 2685 (SC).
On the totality of the evidence led by the parties therefore, and having calmly considered the unchallenged and uncontroverted evidence of the Appellant as DW1, and supported by the evidence of DW2, I hold that the lower Court failed in its primary duty of determining the matters placed before it by the parties on an even scale of justice when it failed completely to consider or even avert its mind to the evidence of the Appellant having acted in self – defence before it and proceeded to convict him of the offence of culpable homicide without considering the effect of the plea of self – defence, as was ably supported by DW2, on the third most crucial element of the offence of culpable homicide, and thereby arrived at the was perverse finding that the third element was proved merely on account of Exhibit A, which it considered as a complete confessional statement of the Appellant whilst ignoring and disregarding the clear statement of self – defence contained therein.
I find that the defence of self – defence clearly availed the Appellant. There was nothing disproportionate in the weapon used by the Appellant in his self – defence to ward off the three times attack with machete by the deceased as both of them used machete. The fact that the deceased was older than the Appellant, is in my finding, of no moment to the success of the defence of self – defence. The Appellant did not have to wait to die or be grievously harmed or injured from the three machete strikes from the deceased before he would be legally justified to defend himself. Indeed, dead men no longer have need for self – defence!
Thus, both the failure of the lower Court and its decision finding the third essential elements of the offence of culpable homicide punishable with death as proved against the Appellant by the Respondent were perverse and occasioned a grave miscarriage of justice against the Appellant. These perverse findings and conclusions are therefore, liable to be set aside. See Re: Glaxo Smithkline Consumer Nigeria Plc. (Miss Funmilayo Rotola Ayodele Williams V. Glaxo Smithkline Consumer Nigeria Plc. (2019) LPELR – 47498 (CA), where this Court per Georgewill JCA, had reiterated inter alia thus:
“A decision of a Court is perverse when it ignore the facts or evidence before it which lapse when considered as a whole constitutes a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such decision and set it aside.”
See also Ogunde V. Abdulsalam (2017) LPELR – 41875 (CA) per Sir Biobele Abraham Georgewill JCA AT pp 35 – 35; Obajimi V. Adediji (2008) 3 NWLR (Pt. 1075) 1 AT p. 19.
My Lords, in law conviction for any offence can only be secured based on proof by sufficient, credible and cogent evidence in satisfaction of all the essential elements of the offence charged, failing which an Accused person is entitled to be discharged and acquitted. In a charge alleging the gravest of offences, such as culpable homicide punishable with death murder, and therefore, carrying the death penalty upon conviction, the clearest of evidence invoking neither doubt nor mere passion or compassion in the Court is required. See Section 135 (1) – (3) of the Evidence Act 2011. See also Deriba V. State (2016) LPELR- 40345 (CA) per Sir Biobele Abraham Georgewill JCA, Abu V. State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA, Saheed V. State (2018) LPELR – 46675 (CA) per Sir Biobele Abraham Georgewill JCA, Ajose V. FRN (2011) 6 NWLR (Pt. 1244) 465 AT p. 470, Emmanuel Eke V. The State (2011) 200 LRCN 143 AT p. 149.
As I bring this judgment to a close, it is to be noted that an Accused person cannot in one breadth rely on self – defence that he killed the deceased in self – defence while in another breadth claim that he did not kill the deceased. It is either he killed the deceased but the death of the deceased was justifiable under self – defence or he did not kill the deceased at all. Either way one and both of them cannot be true. This is so because in law for the defence of self – defence to be raised, the Accused person must admit to the commission of the crime. See Mgboko V. State (1972) 1 RSLR 19.
My Lords, while guilt proved beyond reasonable doubt must be punished according to law, the innocent must be set free and not punished. The sentence of death upon conviction for culpable homicide punishable with death under Section 221(a) of Penal Code is not to be handed down carelessly, thoughtlessly, lackadaisically without clear evidence of the guilt of the Accused person. It is only to be passed when it is clear that the Accused person has been proved to have committed the offence alleged against him by the State beyond reasonable doubt. The reasoning behind such a judgment sending a man to the gallows must be clear on the face of the judgment and if I may add should be impeccable and the product of logical thinking and sound legal deductions. See Felix Nwosu V. The State (1986) 5 NWLR (Pt. 348) 359, where the erudite Eso JSC., (God bless his soul) had waxed inter alia thus:
“A judgment sending a man to the gallows must be seen to be the product of logical thinking based upon admissible evidence which facts lead to conviction as clearly found and the legal deduction thereupon carefully made. It must not be allowed to stand if it is founded upon scraggy reasoning.”
I also call to remembrance the evergreen words of the erudite Obaseki JSC., in Saidu V. The State (1982) 1 NLR 49 AT p. 67, poignantly and poetically capturing as it were the finer principle of law on the need for Courts to refrain from convicting and sentencing Accused person to Prison, much more to death on evidence not proving their guilt beyond reasonable doubt thus;
“It does not give the Court any joy to see offenders escape the penalty they richly deserve but until they are proved guilty under the appropriate law, in our law Courts, they are entitled to walk about our streets and tread the Nigerian soil and breath the Nigerian air as free as innocent men and women.”
What more do I need to say on this issue? None I can think of than to simply bow to the ingrained sense of wisdom and justice in the above statement of the law by no less a Court than the Apex Court in the land, and so I bow.
In the light of all I have sated and found as above, issues one and two are hereby resolved in favour of the Appellant against the Respondent as the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code was not proved beyond reasonable doubt by the Respondent against the Appellant as required by law, contrary to the perverse decision of the lower Court. The defence of self – defence raised and relied upon by the Appellant even in his extra-judicial statement to the Police and also reiterated in his evidence before the lower Court, avails him and thereby negatived the third most crucial mental element of the offence of culpable homicide punishable with death. On the whole therefore, I hold that this appeal is pregnant with merit and should perforce succeed and it is accordingly hereby allowed.
In the result, the judgment of the High Court of Niger State, Kontagora, Division, Coram: A. Abdullahi Mika’ilu J, in Charge No. NSHC/KG/5C/2016: The State .V. Muhammadu Lawal delivered on 23/11/2018, in which the Appellant was convicted of culpable homicide punishable with death contrary to Section 221 of the Penal Code and sentenced to death is hereby set aside.
In its stead, the Appellant is hereby forthwith discharged and acquitted on the sole count as laid in Charge No. NSHC/KG/5C/2016: The State .V. Muhammadu Lawal.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA.
I equally agree with the reasoning and the conclusion that the appeal succeeds and it is accordingly allowed. The judgment of the lower Court delivered on 23/11/2018, is hereby set aside.
I abide by the consequential orders therein.
BATURE ISAH GAFAR, J.C.A.: I have before now read in draft the judgment just delivered by my learned brother,, Sir Biobele Abraham Georgewill, JCA. I agree with and adopt the reasonings and conclusion expressed in the leading judgment. I have nothing more useful to add. In consequence and for the fuller reasons articulated in the leading Judgment, I join my learned brother in setting aside both the conviction and sentence on the Appellant and acquitting him of the charge in the trial.
Appearances:
B. O. Akinseye-George, Esq. with him, J. R. Olusola, Esq. For Appellant(s)
M. S. Abdulaziz, Esq. Principal State Counsel, Ministry of Justice, Minna, Niger State For Respondent(s)
