MAMMAN v. STATE
(2022)LCN/17066(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Friday, December 09, 2022
CA/G/125C/2022
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
ISA WAKIL MAMMAN APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON WAYS THE PROSECUTION CAN PROVE THE CHARGE AGAINST AN ACCUSED PERSON
It is settled law that the prosecution may prove the charge against an accused person in any of the following three ways or by a combination of any of the three, or by all of them, to wit: (a) by eyewitness evidence, by circumstantial evidence and/or by a confession. See Emeka V State (2001) 14 NWLR (Pt. 734) 666, 669. In the instant case, neither the Appellant nor the other accused persons confessed to the offences alleged. Instead, in their extra-judicial statements which are before the trial Court as Exhibits A, B and C, they all denied committing the offences as charged. Thus, the third mode of proof, i.e., by a confession, can be ruled out. PER SANKEY, J.C.A.
WHETHER OR NOT IT IS EVERY CONTRADICTION IN A PROSECUTOR’S CASE THAT AN ACCUSED PERSON WILL BE ENTITLED TO AN ACQUITTAL
The law is trite that it is not in all cases where there are discrepancies or even contradictions in the prosecution’s case that an accused person will be entitled to an acquittal. Rather, it is only where the discrepancies or contradictions are on a material point or points in the prosecution’s case which creates some doubt, that the accused person will be entitled to an acquittal. This is because, in such a circumstance, it is not possible to hold that the evidence of the prosecution is overwhelming. A minor contradiction in the evidence of the prosecution which cannot vitiate the decision or which has not occasioned a miscarriage of justice, cannot affect the decision of the trial Court. Discrepancies or contradictions in the evidence of a witness or witnesses may be said to be material when they go to an issue of fact or where, in the circumstances in which they occurred, they were such as to cast a doubt on the credibility of the witness or the witnesses. For such to be fatal, they must be substantial and fundamental to the case of the prosecution. See Udjor V State (2018) LPELR-43928(CA); Egwumi V State (2013) 13 NWLR (Pt. 1372) 525, 555, B-D; Egwemi V State (2010) LPELR-4080(CA); Usufu V State (2007) 1 NWLR (Pt. 1020) 94; Agbo V State (2006) 6 NWLR (Pt. 977) 545; Ejeka V State (2003) 4 SCNJ 16. PER SANKEY, J.C.A.
THE POSITION OF LAW ON SELF DEFENCE
The defence of self-defence is a complete defence to a charge in law. See Sections 59 and 65 of the Penal Code. However, where an accused person pleads self-defence, what it connotes is that he agrees and/or accepts that he committed the act that led to the death of the deceased, but he was forced to do it because his life or limb was threatened either with death or with a grievous injury or harm. In other words, the plea of self-defence is inconsistent with an outright denial by an accused person that he inflicted the injuries which led to the death of the deceased. Put another way, by pleading self-defence, the Appellant is saying that he was forced to kill the deceased because the deceased attacked him and, in fear for his life or serious injury to himself, he attacked him with an axe and inflicted serious injuries on him which led to his death. That therefore, for this reason, he is not culpable. The Supreme Court in the case of Fulani V State (2018) 45195(SC) 31-36, F-B, per Eko, JSC, stated emphatically and with clarity what self-defence entails, thus:
“Self-defence, as a defence, simply means that the accused person did the alleged act while in the process of defending either himself or some other person and that he had no pre-meditated intention to kill his attacker or to cause him grievous bodily harm. In the instant case, there was no evidence of premeditated intention to kill the deceased by the Appellant. However, the concurrent findings that the Appellant deployed excessive of disproportionate force on his attacker completely takes the matter beyond what the law regards as self-defence to the brink of vengeance, which thus brings the motive for the excessive force.
When self-defence is not accepted, or is dismissed, the accused loses the right to be completely absolved or exonerated. Self-defence, if successfully pleaded and affirmed is a justification or excuse for the act alleged to be a criminal offence. It is a complete defence to the charge. It exonerates the accused person of any wrongdoing. Section 59 of the Penal Code is very explicit: nothing is an offence which is done in the lawful exercise of the right to private defence. The right operates on the principle that it is the first duty of man to defend himself. The right to self-preservation is a biological and inalienable right. Self-defence ordinarily casts reasonable doubt that the accused person intentionally committed the alleged offence. When it was pleaded, and from the facts, it is not accepted or it is dismissed, there can be no question of reasonable doubt created thereby because the mere fact of pleading it [is] tantamount to an admission of the actus reus; … as by the plea the accused person places on himself the evidential burden of establishing that he acted without any criminal motive or intention.”(Emphasis supplied)
See also Afosi V State (2013) LPELR-20751(SC); Braide V State (1997) LPELR-800(SC). PER SANKEY, J.C.A.
THE POSITION OF LAW ON CIRCUMSTANCES UNDER WHICH THE PLEA OF SELF DEFENCE AVAILS AN ACCUSED PERSON
It is the law that the circumstance under which the plea of self-defence avails the accused person is one of facts which the Appellant must establish. Therefore, it cannot be left to conjecture or speculation. Thus, Ariwoola, JSC (now CJN) in Afosi V State (2013) 13 NWLR (Pt. 1371) 329, 357-358, re-stated the four factual components of the plea of self-defence as follows:
(a) “The accused person must, himself, be free from fault or blame in bringing about the encounter. He must not be blameworthy, for if he was blameworthy, then he cannot benefit from his own iniquity.
(b) There must be present an impending peril to human life or of some grievous bodily harm. The existence of such peril must be real or an honest belief of an existing necessity.
(c) There must be no safe or reasonable mode of escape by retreat.
(d) There must have been a necessity for taking of life.”
His lordship continued:
“I should think the only accused person who can successfully plead self-defence is the one who acted on the spur of the moment to ward off peril either to himself or to another person coming from the attacker killed. The law does not permit him to act in a manner excessive or disproportionate. The test is whether from the circumstances he acted in a manner reasonably necessary. The Courts though recognize that the person defending himself cannot weigh to a nicety of the exact measure of necessary defensive action… But there is a thin line to cross. In the instant case, the Appellant crossed the thin line when he pulled a knife and repeatedly stabbed the deceased on the neck, abdomen and back.”
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice Yobe State sitting in Gashua in Suit No. YBS/HC/GSH/09C/21 delivered on 17th March 2022, Coram: M.K. Kyari, J. Therein, the Appellant was convicted for the offences of criminal conspiracy, causing grievous hurt and culpable homicide punishable with death under Sections 97, 247 and 221 of the Penal Code of Yobe State. Irked by this decision, the Appellant filed an appeal to this Court.
A succinct account of the facts leading to the appeal is that the Appellant was arraigned before the lower Court, along with two other accused persons, on a four-count charge of criminal conspiracy, causing grievous hurt and culpable homicide punishable with death under Sections 97, 247 and 221 of the Penal Code. For ease of reference, the charge is set out hereunder:
“1ST COUNT
That you Sani Bulama Garba, Isa Wakil Mamman and Dahiru Musa within the jurisdiction of this Honourable Court on or about the 29/11/2020 do commit the offence of conspiracy in that you agreed to do an illegal act, while armed with dangerous weapons you jointly agreed to commit the offence of culpable homicide punishable with death by causing the death of one Haruna Gwabi of Kurkushe Village of Jakusko LGA of Yobe State and that same act was done in pursuance of the said agreement and thereby committed an offence contrary to Section 96 and punishable under Section 97 of the Penal Code Law, Laws of Yobe State, 1994.
2ND COUNT
That you Sani Bulama Garba, Isa Wakil Mamman and Dahiru Musa within the jurisdiction of this Honourable Court on or about 29/11/2020 did commit the offence of culpable homicide punishable with death in that you caused the death of one Haruna Gwabi of Kurkushe Village of Jakusko LGA of Yobe State by doing an illegal act to wit while armed with machete, bow and arrow, Dame (sic) gun and stick you jointly attacked the deceased person and shot him with Dame (sic) gun with the intention of causing his death and thereby committed an offence punishable under Section 221 of the Penal Code Law, Laws of Yobe State, 1994.
3RD COUNT
That you Sani Bulama Garba, Isa Wakil Mamman and Dahiru Musa within the jurisdiction of this Honourable Court on or about 29/11/2020 commit the offence of voluntary (sic) causing grievous hurt without provocation to one Mohammed Yusuf of Kurkushe Village of Jakusko LGA of Yobe State by shooting him with an arrow on his various parts of his body and you thereby committed an offense punishable under Section 247 of the Penal Code, Laws of Yobe State, 1994.
4TH COUNT
That you Sani Bulama Garba, Isa Wakil Mamman and Dahiru Musa within the jurisdiction of this Honourable Court on or about 29/11/2020 commit the offence of voluntary (sic) causing hurt without provocation to one Musa Tobe of Kurkushe Village of Kakusko LGA of Yobe State by shooting him with an arrow on his various parts of his bodies (sic) and you thereby committed an offense punishable under Section 247 of the Penal Code, Laws of Yobe State.”
The Appellant and the other two accused persons all pleaded not guilty to the charge. At the trial, the Respondent adduced evidence in proof of the charge through six (6) witnesses and four documents. In their defence, the Appellant and the other two accused persons testified in their defence, but called no other witness and tendered no documents. Thereafter, Counsel for each set of parties filed their written addresses which they adopted as their final submissions in respect of the case.
At the close of trial and after giving consideration to all the evidence placed before him, both oral and documentary, as well as the submissions in the written addresses of learned Counsel, the learned trial Judge, in his judgment delivered on 17th March 2022, found the Appellant/2nd accused person guilty on the 1st, 2nd and 3rd counts of charge, while he found the 1st and 3rd accused persons guilty on counts 1 and 3 of the charge, but discharged and acquitted them on count 2 of the charge. Dissatisfied with the decision against him, the Appellant filed his Notice and Grounds of appeal on 17th May, 2022 wherein he complained on four grounds. He seeks the following reliefs from this Court:
(i) “An Order allowing the appeal, discharge and acquit the Appellant;
(ii) An Order setting aside the judgment of the lower Court dated the 17th day of March, 2022 delivered by Hon. Justice Musa K. Kyari in Case Number – YBS/HC/GSH/09C/2021 between The State Vs. Sani Bulama Garba, Isa Wakil Mamman and Dahiru Musa.
(iii) An Order of this Honourable Court for the immediate release from Correctional Centre custody of the Appellant.”
At the hearing of the appeal on 5th October, 2022, learned Counsel for the Appellant, as well as learned Counsel for the Respondent, adopted the submissions in their respective Briefs of Argument and urged the Court in line with the prayers therein. The Appellant’s Brief of Argument, settled by A.A, Shehu Esq., was filed on 20-07-22, while the Respondent’s Brief of Argument, settled by A.A. Musa Esq., was filed on 09-08-22.
In his Brief of Argument, the Appellant donated three issues for the determination of the appeal culled from the four grounds of appeal, which issues were adopted by the Respondent. The issues are as follows:
1. “Whether from the circumstances of this case, the prosecution proved its case beyond reasonable doubt against the appellant in spite of the obvious and material contradictions in the evidence of the prosecution witnesses. (Grounds 1 and 4)
2. Whether the failure of the trial Judge to properly evaluate the evidence placed before him has occasioned serious miscarriage of justice to the appellant. (Ground 2)
3. Whether or not the Appellant has successfully raised a self-defence considering the fact that nothing was placed before the Court to debunk the said self-defence. (Ground 3)”
The appeal shall therefore be determined on these issues. They shall be taken together.
SUBMISSIONS OF APPELLANT’S COUNSEL
Learned Counsel for the Appellant submits under issue one that the prosecution did not meet the pre-requisites for securing the conviction of the Appellant for the offence of culpable homicide punishable with death under Section 221 of the Penal Code by proving the case beyond reasonable doubt. The pre-requisites, being proof of the ingredients of the offence, are that –
(a) the death of a human being took place;
(b) the death was caused by the accused;
(c) the act of the accused that caused the death was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act.
He submits that these ingredients must be proved beyond reasonable doubt by direct or circumstantial evidence given the facts of the instant case. In respect of the first ingredient, being the death of a human being, he referred to the evidence offered through PWs 1, 2, 3, 4 and 5. For the second ingredient, which is that such death was caused by the accused, the Respondent points to the testimonies of PW1 and PW3, which he however contends, cannot be relied on because it is hearsay evidence and contradictory. In addition, he contends that Exhibit 1, the statement of the Appellant to the Police, and Exhibit 6, the Medical Report, contradict each other as to the cause of death, and therefore, there is no nexus between the death of the deceased and the Appellant. This contradiction, which he argues is not a discrepancy and should therefore be resolved in favour of the Appellant. Counsel finally submits that the prosecution failed to meet the pre-requisites for securing a conviction against the Appellant for the offence of culpable homicide punishable with death.
On issue two, Counsel submits that the learned trial Judge failed to properly evaluate the evidence adduced before him. He contends that the trial Court did not make reference to the evidence of the Appellant as DW1, as well as those of the other accused persons, DW2 and DW3. That he did not evaluate their evidence or ascribe probative value thereto, and that this has occasioned a miscarriage of justice. He submits that the primary duty of a trial Court to appraise oral evidence and ascribe probative value to the evidence of both parties has not been discharged effectively, and that this has led to a miscarriage of justice as it has led him to a wrong decision. He therefore urged the Court to resolve this issue in favour of the Appellant.
Under issue three, Counsel submits that the trial Court did not properly direct itself when it dismissed the plea of self-defence raised by the Appellant when there was nothing placed before the Court to debunk same. He contends that the Appellant established that they were attacked in their village, as is confirmed by PW5, hence the necessity of defending themselves. The evidence of DW2 established apprehension of death or grievous harm and the belief that the acts he is accused of were necessary for his protection. He relies on Section 65 of the Penal Code which is available to the Appellant to exclude criminal responsibility where the nature of the assault is such as to cause reasonable apprehension of death or grievous harm. Counsel therefore submits the prosecution was under a duty to disprove the defence of self-defence. That since it did not rebut it, the Appellant is entitled to an acquittal. For all the above submissions, Counsel referred to and relied upon a cloud of decisions which shall be considered in my findings, as the need arises. In conclusion, Counsel urged the Court to set aside the decision of the lower Court, and to discharge and acquit the Appellant.
SUBMISSIONS OF RESPONDENT’S COUNSEL
In response, learned Counsel for the Respondent submits under issue one that the prosecution met the pre-requisites for securing the conviction of the Appellant for the offences of criminal conspiracy, causing grievous hurt without provocation and culpable homicide punishable with death under Sections 97, 247 and 221 of the Penal Code. He contends that it did this through the evidence of PW1, PW2 and PW3, who were eyewitnesses and also some of the victims of the crimes committed by the Appellant and the other accused persons. Counsel submits that in criminal trials, if the essential ingredients are proved by the prosecution, the charge is proved beyond reasonable doubt, and the standard need not be as high as proof beyond a shadow of doubt. Counsel submits that contrary to the contention of the Appellant, the lower Court properly evaluated all the evidence placed before it by both parties to arrive at its decision.
On the allegation that there were contradictions in the evidence of the prosecution, Counsel submits that there is no contradiction in the prosecution’s case worthy of consideration. He submits that the contention of the Appellant that there is inconsistent evidence in respect of: (i) the name of the deceased; (ii) whether PW1 was present when the incident happened; (iii) who actually shot PW2 with an arrow in his hands; (iv) who did the 1st accused actually shoot; and (v) the actual cause of death in the opinion of PW6, the Medical Doctor; should be discountenanced as they were mere discrepancies. Consequently, that there were no material contradictions in the prosecution’s case on the facts.
Counsel further submits that where there is an eyewitness to a murder, that the killer used a lethal weapon in committing the offence, and that the deceased died on the spot or so soon after the attack, the production of the implement used and/or medical evidence to establish the cause of death, will not be mandatory, though perhaps it may be desirable. However, where death occurs on the spot, the production of the lethal weapon, though desirable, would be dispensable in the circumstance, as well as a medical report. Counsel submits that in the instant case, it was established that the act of the Appellant who hit the deceased with an axe on various parts of his body, led to the death of the deceased. Finally, Counsel submits that the lower Court properly considered the defence of self-defence put forward by the Appellant and rightly held that it did not avail him.
In respect of issue two, Counsel submits that the evaluation of evidence and ascription of probative value is the primary responsibility of a trial Court; and the appellate Court ought not to interfere with it unduly, except where such evaluation is perverse. He contends that the lower Court properly evaluated the evidence, and so urged the Court to resolve the issue in favour of the Respondent.
In respect of issue three, Counsel agreed with the Appellant that pursuant to Section 59 of the Penal Code, the trial Court was under a duty to consider every defence open to the accused person on the evidence, whether or not he specifically puts up such a defence. He however submits that from the available evidence, in particular, the un-discredited evidence of PW1, PW2 and PW3, the plea of the Appellant of self-defence or private defence under Section 59 of the Evidence Act, is negatived. He contends that these were eyewitnesses and victims of the offences for which the Appellant was charged and convicted. They identified him as one of those who ambushed and attacked them, in conjunction with others, without any provocation, as a result of which they sustained various injuries and Haruna Gwabi was killed on the spot.
Counsel submits that even if, as the evidence of DW2 suggests, the Tagza people (to which the Appellant belongs), were attacked by the Kurkushe people, and the former had a right to defend themselves, they lost that right to self-defence the moment they were the aggressors against the Kurkushe people, as the evidence adduced showed that it was the Appellant along with others, that attacked the Kurkushe people which led to the death of the deceased. Thus, that the defence of self-defence does not avail the Appellant. Counsel urged the Court to resolve all three issues against the Appellant. For all the above submissions, he referred to and relied upon a host of decisions which shall be considered in the judgment as appropriate. He finally urged the Court to dismiss the appeal and affirm the judgment of the lower Court.
RESOLUTION OF THE THREE ISSUES
Both learned Counsels have properly set out the ingredients of the offence of culpable homicide punishable with death for which the Appellant was charged and convicted. I note that there is no dispute as to the fact that the death of a human being was established by the eyewitness evidence of the witnesses, in particular, the evidence of PW1 and PW6 (the medical doctor) and Exhibit D (the medical report).
The dispute under issue one is in respect of the other two ingredients of the offence of culpable homicide punishable under Section 221 of the Penal Code, to wit: whether the Respondent proved that it was the act of the Appellant that caused the death of the deceased, and whether he carried out the act with the intention of causing death, or that he knew that death would be the probable consequence of his act.
It is settled law that the prosecution may prove the charge against an accused person in any of the following three ways or by a combination of any of the three, or by all of them, to wit: (a) by eyewitness evidence, by circumstantial evidence and/or by a confession. See Emeka V State (2001) 14 NWLR (Pt. 734) 666, 669. In the instant case, neither the Appellant nor the other accused persons confessed to the offences alleged. Instead, in their extra-judicial statements which are before the trial Court as Exhibits A, B and C, they all denied committing the offences as charged. Thus, the third mode of proof, i.e., by a confession, can be ruled out.
However, PW1, PW2 and PW3 testified that they were at the scene of crime on the date of the incident and as a result, they were also victims as they sustained injuries from the attack on them by the Tangze people. Since the evidence of PW1 is central to the conviction of the Appellant, indulge me as I reproduce portions of it as recorded at pages 22-23 of the record of appeal:
“It was on a certain Sunday around 8am, our children are on the river side catching fish, the 3rd accused person met our children while fishing and demanded some ransom or they would destroy their fishing materials, they started arguing, they shot one of our children by name Musa Tobe at his hand, they came back and informed us that Musa Tobe was shot with an arrow, we then went to the place I and brother of Musa Tobe by name Babangida, while going to the place the three accused persons ambushed us and started shooting us with arrow and Den-Gun, Babangida was killed on the spot, Babangida is also known as (Haruna Gwabi). I saw Isa inflicting injury with an axe on him. Isa is the 2nd accused person, I was also injured and left there, I was injured by all of them, I sustained injury and was taken to the hospital, I was hit on the back with arrows and Den-Gun, I was left there unconscious, I heard them saying since they have kill me let them go back to protect their village, I was also injured on my head with an axe. The deceased Haruna Gwabi was buried.”
PW1 was extensively cross-examined by Counsel for the Appellant and other accused persons, but his evidence was neither shaken nor controverted. Also, Musa Tobe, the person mentioned in the evidence of PW1, testified as PW2. He confirmed the evidence of PW1 up to the point of how he was shot by the Tangze people with an arrow as a result of which he sustained an injury on his hand. He left the scene and had the arrow removed at a Chemist’s shop. Even though he could not identify any of the persons who shot him, he confirmed that Haruna was killed as a result of the incident and has since been buried.
PW6, Dr. A.O. Akintola, was the medical doctor working at the Specialist Hospital, Gashua in Yobe State who certified Haruna Gabi dead when his corpse was brought to the hospital. He testified inter alia thus at pages 33-34 of the record of appeal:
“I know Haruna Ibrahim. I am MBBS with 20yrs working experience. On the 29/11/2020 his corps (sic) was brought to the hospital for certification, I then examined the body and found several signed (sic) of traumer (sic). First one was a deep cut at his right hand, then two cuts at the right leg, also an arrow sticking out from the right hand and buttocks also the death in my opinion was severe blood lost and shocked.”
He issued a medical report based on his examination of the corpse of the deceased which is Exhibit D before the trial Court.
In considering the evidence presented before the trial Court in respect of the count of charge which alleged that the Appellant committed culpable homicide punishable under Section 221 of the Penal Code, the learned trial Judge relied mainly on the evidence of these two witnesses, PW1 and PW6, as well as the medical report, Exhibit D. He found as follows:
“The evidence of PW6 medical doctor and Exhibit D medical report corroborated the evidence of PW1 who told this Court that he saw the 2nd accused inflicting injury on the deceased Haruna Gwabi with an axe, with the pieces of evidence of PW1 who was an eyewitness as well as the victim of the act of the accused persons, it was established beyond reasonable doubt that the 2nd accused person’s act that killed Haruna Gwabi, by inflicting injury with an axe on the deceased as the medical report also confirmed that the deceased died as a result of a deep cut at his right hand and two cuts at his right leg which resulted in loss of blood and shock. Based on the evidence of PW1 which was corroborated by the evidence of PW6 and medical report Exhibit D, I have no doubt that it was the 2nd accused person’s act that resulted in the killing of the deceased Haruna Gwabi. The second ingredient has been proved by the prosecution against the 2nd accused person beyond reasonable doubt as required by law and I so hold.”
After an in-depth consideration, I find no reason to fault the reasoning and finding of the learned trial Judge on this. Both in logic and law, it is faultless. It is also a finding of fact which this Court cannot discard unless it is shown and established that it is perverse or not in consonance with some principle(s) of law. I acknowledge that the Appellant has faulted the finding on the basis that the deceased was variously referred to by the two witnesses as “Haruna Gwabi” and “Haruna Ibrahim”. This is true. However, there is no dispute about the fact that it was the person who was viciously attacked by the 2nd accused on the date in question and at the scene when there was a fracas between the Tangze people and the Kurkushe people, and whom PW1 gave an eyewitness account of how 2nd accused, now Appellant, hacked him with an axe as a result of which he died on the spot, that was subsequently certified dead by PW6 and the medical report (Exhibit D) issued on him. Thus, the difference in nomenclature notwithstanding, the basic fact is that the deceased was attacked by the Appellant with an axe, he inflicted cuts on his hand and leg, which caused him to bleed and die on the spot from blood loss and shock. Thus, I agree with learned Counsel for the Respondent that the difference in the name with which the deceased was referred to by the eyewitness, PW1 and the medical doctor, PW6, is a mere discrepancy, that cannot be elevated to the level of a contradiction sufficient to render the evidence unreliable.
The law is trite that it is not in all cases where there are discrepancies or even contradictions in the prosecution’s case that an accused person will be entitled to an acquittal. Rather, it is only where the discrepancies or contradictions are on a material point or points in the prosecution’s case which creates some doubt, that the accused person will be entitled to an acquittal. This is because, in such a circumstance, it is not possible to hold that the evidence of the prosecution is overwhelming. A minor contradiction in the evidence of the prosecution which cannot vitiate the decision or which has not occasioned a miscarriage of justice, cannot affect the decision of the trial Court. Discrepancies or contradictions in the evidence of a witness or witnesses may be said to be material when they go to an issue of fact or where, in the circumstances in which they occurred, they were such as to cast a doubt on the credibility of the witness or the witnesses. For such to be fatal, they must be substantial and fundamental to the case of the prosecution. See Udjor V State (2018) LPELR-43928(CA); Egwumi V State (2013) 13 NWLR (Pt. 1372) 525, 555, B-D; Egwemi V State (2010) LPELR-4080(CA); Usufu V State (2007) 1 NWLR (Pt. 1020) 94; Agbo V State (2006) 6 NWLR (Pt. 977) 545; Ejeka V State (2003) 4 SCNJ 16.
In the instant case, PW1 was an eyewitness to the killing and death of the deceased, the 2nd Appellant used a lethal weapon, i.e., an axe, to attack the deceased and inflict deep cuts to his hand and leg which proved to be fatal, and the deceased died on the spot. Based on the facts presented to the trial Court where the deceased was attacked by the Appellant with a lethal weapon and he died on the spot, it can properly be inferred that it was the injuries inflicted on the deceased by the Appellant with an axe that caused the death. This was confirmed by PW6 in his evidence and in the medical report, Exhibit D. Thus, I agree with the learned trial Judge in his finding that it was the act of the Appellant who hit the deceased with an axe on various parts of his body that caused the death of the deceased. See Igago V State (1999) 14 NWLR (Pt. 637) 1, 291-292, H-D, 296, C-G; Effiong V State (1998) 8 NWLR (Pt. 562) 362; Michael V State (2008) 13 NWLR (Pt. 1104) 361; Galadima V State (2013) LPELR-20402(CA), 35-37, B-F. Consequently, for these reasons, I resolve issue one against the Appellant.
In respect of issue two, the contention of the Appellant is that the learned trial Judge did not evaluate the evidence placed before him. It is true that the law is trite that the evaluation of evidence and ascription of probative value is the primary responsibility of the trial Court. It is also the law that an appellate Court will not interfere with this exercise unduly except where the evaluation is shown to be perverse. See Ali V Likita (2013) LPELR-22814(CA) 19-20, E-C; Sha V Kwan (2000) 5 SC 178; State V Ajie (2000) 7 SC (Pt. 1) 24. It is manifest that the learned trial Court properly evaluated the evidence and ascribed probative value thereto before arriving at its decision. See pages 77-80 of the record of appeal.
This brings me to the defence of self-defence put forward by the Appellant. The defence of self-defence is a complete defence to a charge in law. See Sections 59 and 65 of the Penal Code. However, where an accused person pleads self-defence, what it connotes is that he agrees and/or accepts that he committed the act that led to the death of the deceased, but he was forced to do it because his life or limb was threatened either with death or with a grievous injury or harm. In other words, the plea of self-defence is inconsistent with an outright denial by an accused person that he inflicted the injuries which led to the death of the deceased. Put another way, by pleading self-defence, the Appellant is saying that he was forced to kill the deceased because the deceased attacked him and, in fear for his life or serious injury to himself, he attacked him with an axe and inflicted serious injuries on him which led to his death. That therefore, for this reason, he is not culpable. The Supreme Court in the case of Fulani V State (2018) 45195(SC) 31-36, F-B, per Eko, JSC, stated emphatically and with clarity what self-defence entails, thus:
“Self-defence, as a defence, simply means that the accused person did the alleged act while in the process of defending either himself or some other person and that he had no pre-meditated intention to kill his attacker or to cause him grievous bodily harm. In the instant case, there was no evidence of premeditated intention to kill the deceased by the Appellant. However, the concurrent findings that the Appellant deployed excessive of disproportionate force on his attacker completely takes the matter beyond what the law regards as self-defence to the brink of vengeance, which thus brings the motive for the excessive force.
When self-defence is not accepted, or is dismissed, the accused loses the right to be completely absolved or exonerated. Self-defence, if successfully pleaded and affirmed is a justification or excuse for the act alleged to be a criminal offence. It is a complete defence to the charge. It exonerates the accused person of any wrongdoing. Section 59 of the Penal Code is very explicit: nothing is an offence which is done in the lawful exercise of the right to private defence. The right operates on the principle that it is the first duty of man to defend himself. The right to self-preservation is a biological and inalienable right. Self-defence ordinarily casts reasonable doubt that the accused person intentionally committed the alleged offence. When it was pleaded, and from the facts, it is not accepted or it is dismissed, there can be no question of reasonable doubt created thereby because the mere fact of pleading it [is] tantamount to an admission of the actus reus; … as by the plea the accused person places on himself the evidential burden of establishing that he acted without any criminal motive or intention.”(Emphasis supplied)
See also Afosi V State (2013) LPELR-20751(SC); Braide V State (1997) LPELR-800(SC).
Thus, it is evident that a plea of self-defence is mutually exclusive, inconsistent with and cannot stand side by side with an outright denial of the facts that the accused person committed the act(s) which led to the death of a deceased person, i.e., the actus reus. That being the case, the submission of learned Counsel for the Appellant that the learned trial Judge did not evaluate or consider the case of the Appellant in its findings that the deceased died, and that it was an act of the Appellant that led to the death of the deceased, is misconceived. This is because by pleading self-defence, the Appellant effectively admitted that the deceased died from the cuts he inflicted on various parts of his (deceased’s) body, but that he did so (i) while defending himself from an attack by the deceased (ii) where he was in fear for his life or of being inflicted with serious/grievous hurt, and that (iii) his response was not disproportionate to the attack. This is the implication of his plea of self-defence.
Consequently, since the Appellant presented self-defence as his defence to the charge of culpable homicide, the learned trial Judge cannot be faulted when, in considering the case presented by the Appellant, he went straight to the defence presented, in order to determine whether or not the Appellant could be availed of the defence, since by reason of such a plea, he had admitted responsibility for the killing of the deceased, but pleaded that he did so while defending himself from a similar fate. (See page 80 of the record of appeal). The learned trial Judge was therefore right when he made his findings in respect of the first and second ingredients of the offence, (id est: the death of a human being, and that it was caused by the Appellant), by largely considering the evidence of the prosecution. Then thereafter, he proceeded to consider whether on the facts placed before the trial Court, the Appellant was availed of the defence of self-defence when he so acted.
Finally on the third issue, which is: whether or not the defence of self-defence was successfully raised, the learned trial Judge clearly considered the plea raised in the Appellant’s defence, as DW2, vis-à-vis the evidence of PW1 and PW2. From the evidence of the Appellant as DW2, nowhere therein did he admit specifically that he attacked the deceased and inflicted cuts on him with a lethal weapon as a direct result of any attack on him or fear of attack, or fear for his life or limb. Instead, he gave a rambling story of the enmity between the Tangze and the Kurkushe people which had led to attacks in the past and present. He described the present attack, in respect of which he said some security men from Jigawa came and asked them all to return to their villages. That is all. It was only subsequently under cross-examination that the Appellant reluctantly admitted that there was a clash between the two sets of villagers and that they retaliated.
It is the law that the circumstance under which the plea of self-defence avails the accused person is one of facts which the Appellant must establish. Therefore, it cannot be left to conjecture or speculation. Thus, Ariwoola, JSC (now CJN) in Afosi V State (2013) 13 NWLR (Pt. 1371) 329, 357-358, re-stated the four factual components of the plea of self-defence as follows:
(a) “The accused person must, himself, be free from fault or blame in bringing about the encounter. He must not be blameworthy, for if he was blameworthy, then he cannot benefit from his own iniquity.
(b) There must be present an impending peril to human life or of some grievous bodily harm. The existence of such peril must be real or an honest belief of an existing necessity.
(c) There must be no safe or reasonable mode of escape by retreat.
(d) There must have been a necessity for taking of life.”
His lordship continued:
“I should think the only accused person who can successfully plead self-defence is the one who acted on the spur of the moment to ward off peril either to himself or to another person coming from the attacker killed. The law does not permit him to act in a manner excessive or disproportionate. The test is whether from the circumstances he acted in a manner reasonably necessary. The Courts though recognize that the person defending himself cannot weigh to a nicety of the exact measure of necessary defensive action… But there is a thin line to cross. In the instant case, the Appellant crossed the thin line when he pulled a knife and repeatedly stabbed the deceased on the neck, abdomen and back.”
The scenario before the apex Court is eerily similar to the facts in the instant appeal. From the evidence of PW1 and PW2, which the trial Court referred to in the consideration of the plea of self-defence by the Appellant, they were fishing in the river when the Appellant, in the company of other persons, attacked them and inflicted injuries on them (PW2). When the deceased (brother to PW2) and others (PW1 inclusive) ran to the scene, the Appellant, the two other accused persons and others, again attacked them also with lethal weapons, i.e., axe, Dane gun, bow and arrows, etc. PW1 and PW2 described the attacks, while PW6 and Exhibit D described the nature of injuries and cause of death of the deceased, thus providing the nexus between the cuts inflicted on the deceased by the Appellant and his death.
Based on the evidence before the trial Court, it is apparent that the Appellant failed to prove the four factual components of the plea of self-defence that would have entitled him to the cover of that safety net. Rather, by his evidence (at page 50 of the record of appeal), he stated that it was the villagers from Kurkushe Village, i.e., the side of the deceased, that repeatedly attacked them and that security agents from Jigawa came in to stop the fray. Under the furnace of cross-examination, the Appellant admitted that they (the Tangze people) retaliated. The nature of this retaliation, though not expatiated upon, is pregnant and full of meaning. However, at the end of the day, the deceased died on the spot from injuries inflicted on him specifically by the Appellant, and no other. If this account is to be believed, it is significant that, given the plea of self-defence by the Appellant, his admission that even while security officers came to the scene to act as a buffer and to prevent or safeguard against unwonted and un-warranted consequences, the Appellant and others still went ahead to attack the other villagers to the point that one person (Haruna Gwabi) lost his life and others (PW1 and PW2) sustained injuries. Thus, destroying two of the components for a successful plea of self-defence, id est: there must be no safe or reasonable mode of escape by retreat, and that there must have been a necessity for taking of life. It is for these reasons that I agree with the learned trial Judge in his findings, after proper consideration, that the Appellant was not entitled to the defence of self-defence having failed to establish the components of the defence. I therefore resolve issue three also against the Appellant.
In the result, having resolved all three issues against the Appellant, I find no merit in the appeal. It fails and is dismissed.
Accordingly, I affirm the judgment of the High Court of Justice Yobe State in Suit No. YBS/HC/GSH/09C/21 delivered on 17th March, 2022, Coram: M.K. Kyari, J.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother Jummai Hannatu Sankey, JCA, afforded me the opportunity of reading in draft before today, the lead judgment just delivered. I agree with the reasoning and conclusion arrived at in the judgment and join my learned brother in dismissing the appeal for lack of merit. I abide by the consequential orders made in the judgment.
EBIOWEI TOBI, J.C.A.: My lord and learned brother, Jummai Hannatu Sankey, JCA afforded me the privilege of reading in draft, the leading judgment just delivered. My Lord affirmed the decision of the lower Court by upholding the conviction of the Appellant. My learned brother has exhaustively stated the position of the law on the offences for which the Appellant was charged, tried, convicted, and sentenced. It will not achieve any useful purpose for me to repeat the same position stated by my learned brother.
I will, however, by way of making one or two additions state that the lower Court convicting the Appellant clearly shows that the Court believes that the Respondent had proved its case beyond reasonable doubt, this means that the lower Court has agreed that from the evidence of the Respondent’s witness, there is a very high probability that the Appellant is guilty of the offence. This is what proof beyond reasonable doubt implies. In Ankpegher vs. The State (2018) 1 NWLR (Pt. 1631) 484, the apex Court per Okoro, JSC held:
“Both counsel representing the appellant and respondent respectively have admirably stated in their respective briefs of argument the legal meaning of the phrase proof beyond reasonable doubt and I commend them for this agreement even though they disagree on the quantum and quality of evidence to reach that standard. For the avoidance of doubt, I shall restate, though briefly the meaning of proof beyond reasonable doubt.
In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt. As was stated by Lord Denning J, in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed:
The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – of course, it is possible but not in the least probable the case is proved beyond reasonable doubt. See also Nwaturuocha v. The State (2011) 6 NWLR (Pt.1242) 170, Smart v. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni v. The State (2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351 Hassan v. The State (2016) LPELR-42554 (SC).
In The State v. Onyeukwu (2004) 14 NWLR (Pt.813) 340, this Court held that the expression beyond reasonable doubt is a concept founded on reason and rational and critical examination of a state of facts and law rather than in fancied whimsical or capricious and speculative doubt.
From all that has been said above, it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt or to the tilt. It is just to establish the guilt of the accused person by credible, cogent, reliable and believable evidence.”
Similarly, in Nwaturuocha vs. State (2011) 6 NWLR (Pt. 1242) 170, the apex Court held:
“Proof beyond reasonable doubt is not proof to the hilt. It is not proof beyond all iota of doubt. One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution, as done in the instant matter, the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.”
It must be stated here that once there are doubts, which must be material doubt, such will be resolved in favour of the Appellant. The doubts must be material and not fanciful, meaning that the doubt must relate to the ingredients of the offence. See Arfo vs FRN (2022) LPELR-58043 (CA).
In agreeing with the leading judgment by my learned brother Jummai Hannatu Sankey, JCA, I am of the opinion that the evidence of PW1, PW2 has established the ingredients of the offences and that the Appellant’s evidence of self defence cannot avail the Appellant.
For the above reasons and much more for the fuller reasons in the leading judgment, I also dismiss the appeal as lacking in merit. I affirm the judgment of the lower Court.
Appearances:
A.A. Shehu, with him, M.J. Madaki, Esq. For Appellant(s)
M.H. Mohammed, Esq. State Counsel, Ministry of Justice, Yobe State. For Respondent(s)
