MOHAMMED v. STATE (2020)

MOHAMMED v. STATE

(2020)LCN/14417(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/S/164C/2018

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

ABUBAKAR MOHAMMED APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE DEFENCE OF SELF-DEFENSE

The defence of self defence is clearly a child of necessity. It is a defence that is not pleaded as a matter of course, but one in which the defendant is expected to establish that he was at the time of the killing in reasonable apprehension of death to himself or grievous harm and that it was necessary at the time to use the force which resulted in the death of the deceased in order to preserve his life. As an important aspect of the force used by the defendant must be shown to be proportionate to the force used or imminently threatened against him and reasonable in the circumstances in which it was used. The defense of self-defense, of course is not available where the person attacked used a greater degree of force than was necessary in repelling the attack. See AUGUSTINE DURU vs. THE STATE [1993] SCNJ 9; NWUZOKE vs. STATE (1988) NWLR (PT. 72) 529 and several other reported cases on the subject. PER OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): Before the High Court of Justice in Kebbi State, in the Birnin-Kebbi Judicial Division, High Court No: 1, ABUBAKAR MOHAMMED (hereinafter referred to as the “Appellant”) was arraigned on a Count Charge, which reads thus;
“That you Abubakar Mohammed on or about the 15th day of February, 2015 at about 17:00hrs in the bush at Tunga Magaji Village via Zaria Kalakala District in Koko Local Government Area of Kebbi State within the jurisdiction of Kebbi State High Court of Justice did commit culpable homicide punishable with death in that you caused the death of Ummaru Wakaso by cutting him with a machete on the arm and head with the intention of causing his death or with the knowledge that his death would be the probable consequence of your act and you thereby committed an offence punishable under Section 221(b) of the Penal Code”.

The Appellant pleaded not guilty to the single Count information. The Prosecution called five (5) witnesses in its bid to prove the charge against the Appellant. The Prosecution also tendered a total of two (2) Exhibits marked Exhibits A and B.

However, as it relates to the extra-judicial statements of the Appellant, he raised objections to their admissibility on the ground that the statements were not voluntarily obtained. On the part of the Appellant, he testified for himself and called no witnesses. At the conclusion of trial, the learned trial judge, on the 6th day of March, 2018 delivered a well-considered judgment, convicting the Appellant to death by hanging. Dissatisfied with the said judgment the Appellant has brought an appeal to this Court, whereupon he filed a Notice of Appeal contain eight (8) Grounds of Appeal on the 24th April, 2018.

ISSUES FOR DETERMINATION:
Two issues were nominated for the determination of this Appeal by the Appellant, thus;
1. Whether in line with the evidence adduced the prosecution has proved its case beyond reasonable doubt for an offence of culpable homicide punishable with death as stipulated under Section 221(b) of the Penal Code vis-a-vis whether the prosecution has proven all the elements of the said offence against the Appellant.(Grounds 1,2,3,4, 6 and 7.)
2. Whether the Appellant is entitled to the defence of self-defence

considering the circumstances of the case before the lower trial Court.(Ground 5).

On the part of the Respondent, two issues were also nominated for the determination of this Appeal, thus;
1. Whether from the pieces of evidence adduced before the lower Court: the Respondent has proved the case of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code against the Appellant beyond reasonable doubt. (Grounds 1, 2, 3, 6 & 8).
2. Whether considering the surrounding circumstances of the instant case, the Appellant is entitled to the defence of provocation, self-defence or any other defence. (Grounds 4, 5 & 7)

It is important to note that the issues nominated by both sides of the divide are clearly identical, except for a few instances of differences in semantics and for this reason this Appeal shall be decided based on the issues nominated by the Appellant. The Appellant’s Brief of argument dated 10-6-2019 was settled by NURA BELLO ESQ., and filed on the 11-6-2019, while the Respondent’s Brief of argument filed on the 15-11-2019 but deemed filed on the 9-3-2020 was settled by LAWAL HUDU GARBA

ESQ.,. At the hearing of this Appeal on the 1-6-2020, learned Counsel adopted their respective Briefs of argument on behalf of the parties and each urged this Court to resolve this Appeal in favour of their sides.

SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUE ONE:
Whether in line with the evidence adduced the prosecution has proved its case beyond reasonable doubt for an offence of culpable homicide punishable with death as stipulated under Section 221(b) of the Penal Code vis-à-vis whether the prosecution has proven all the elements of the said offence against the Appellant. (Grounds 1, 2, 3, 4, 6 and 7)

In arguing this issue, learned Counsel submitted that the onus of proof in a criminal trial lies on the prosecution, to lead credible evidence pointing irresistibly to the guilt of the accused person(s) beyond reasonable doubt. Counsel cited the case of SHURUMO vs. THE STATE (2010) 44 NSCQR PG. 135 @ 139 R.3. According to Counsel, proof beyond reasonable doubt entails the establishment of all the elements of an offence alleged by the prosecution. He also cited the case of OCHIBA vs. THE STATE (2012) 9 WRN PG. 33 @ 40 R.43 to buttress

his arguments.

Against the backdrop of the foregoing, Counsel submitted that in line with the above cited authorities the trial Court misdirected itself in the application of the law to the facts of the case when it held as follows on page 100 lines 30-33 of the record of proceedings.
“…also the evidence of PW3 and 5 who saw the corpse and the injuries inflicted on the deceased, the Court no doubt believed that the death of deceased Umaru Sanda was caused by the act of the accused person Abubakar Mohammed”.

The contention of learned Counsel on this issue is that the finding of the trial Court was erroneous having regard to the facts of the case. He argued that the cause of death of the deceased Umaru Sanda was unknown as PW3 and PW5 whose testimony the lower trial Court relied upon apart from the confessional statement are short of the requirements of the law. Against this position, Counsel argued that this included the testimony of the PW3 at page 45 of the record lines 8-14 where he informed the Court that:
“The deceased was my son on 15-02-2015 I was at T/Magajiat home when my son was killed; he went to the bush

rearing animal when I was told in the evening that my son was dead. We went to the bush and found him dead with his body cut into so many places. We met the body of the deceased in a valley. When I lifted the body I saw that he was cut on the head and the arm (upper) it was a very big cut, the wound cut on the head was so bad that even the bones on the head were out and buried there”.

As for the testimony of the PW5 at pages 48-49 of the records at lines 14-23, learned Counsel was of the view that that testimony also amounted to nothing, thus:
“On 15/02/2015 at 1700 hours I was at Divisional Police Headquarters Koko/Besse as an IPO one Mal. Wakaso report at the police station against Abubakar Mohammed (suspect), that at about 3:00pm the accused used his cutlass and inflicted injury to his son one Umaru Wakaso. I was asked to investigate the case. A team of detective led by Supol ASP Abubakar Mohammed went to the scene of crime where they met the corpse of the deceased in a pool of his blood with a deep cut on his right hand shoulder. We took the pictures of the corpse and recovered a hat with a blood stained on it. We carried the corpse

to the General Hospital Koko where it was certified dead and later released it to his relatives for burial.”

In his further arguments on the issue, Counsel submitted that the above quoted extracts of the testimony of the PW3 and PW5 is nothing rather than a mere hearsay and that hearsay, no matter how strong is secondary evidence that can best be described as a second-hand evidence as was held in the case of FRN vs. USMAN (2012) 31 WRN 1-185 PG 1 @ PG 6-7 Ratio 6. It was further argued by Counsel that to confirm that the testimonies of PW3 and PW5, which the Court relied upon in convicting the Appellant were mere hearsay, that the PW5 when cross examined at pages 49 lines 28-29 of the record of appeal answered that “the father of the deceased Wakaso was not at the scene when the fight took place he was told”. Counsel therefore urged this Court to so hold.

Counsel also drew attention to the lower trial Court’s findings in its judgment at pages 100 lines 18-21 of the record of appeal, where the Court held thus;
“There is no better proof of intention than the accused own confession of how after disarming the deceased of

his cutlass brought out his own cutlass and stabbed the deceased on the head twice, which is very vital organ of the body”.

The contention of Counsel is that the finding of the trial Court in the above cited extract is erroneous having regard to the fact that the purported confessional statement, which the lower trial Court relied upon cannot stand the test of time in as much as the law is appreciate that an accused person can be convicted solely on his own confession, but he argued that despite this position, there are exceptional circumstances where the Court will overlook such confession particularly where from the surrounding circumstances of a particular case, it is not probable that the confession is true. Counsel cited the case of ABIODUN vs. THE STATE (2012) 14 WRN PG. 37 @ 40 R.2.

On account of this position, Counsel urged this Court to hold that the purported confessional statement of the Appellant in this instant appeal is not properly tendered and admitted before the lower trial Court. Counsel said that when the Prosecution sought to tender the statement of the Appellant at the Court below, that same was objected to by the Defence

before the matter later proceeded to a trial within trial. (See pages 40-43 of the records of Appeal.)

According to learned Counsel, the procedure adopted by the lower trial judge is unknown to law in the trial-within-trial is unknown to law. The contention of learned Counsel is that the meaning and procedure to be adopted at the voir dire or trial within trial was briefly described in the case of ADEYEMI vs. STATE (2012) ALL FWLR (PT. 606) 492 AT 508 C.A.

Arising from the foregoing, Counsel contended that rather than go ahead and deliver a ruling as it is expected, whether admitting the said confessional statement or not that the learned trial Court at pages 43 and 44 of the records ruled that ruling in the trial within trial will be taken alongside the judgment and that the Court then went ahead and admitted the statement sought to be tendered and marked it as Exhibit ID 1 and1A.

Counsel also submit that in law, that any document tendered before the Court for identification purposes has no probative value whatsoever as was held in the case BOYEWA vs. STATE (2017) 29 (8) WRN 1-173 PG 97 RATIO 3. As far as Counsel is concerned, the said

confessional statements recorded by Inspector Umaru Musa on the 24th February, 2015 and tendered through him has no probative value and same cannot be elevated to the status of an exhibit that the Court can rely upon to convict the Appellant.

The further contention of Counsel is that a similar defective procedure was adopted when the PW2 wanted to tender the additional statement of the Appellant and same was objected to by the Counsel to the Appellant and that instead of the PW2 to narrate to the lower Court how he obtained the additional statement from the Appellant, the PW2 only informed the Court that he adopt his earlier evidence on trial within trial and the Court in it wisdom held that:
“The additional statement recorded on 2nd March, 2015 will be considered along with the judgment and it is marked ID 2 and 2A for English translation”.
(See page 44 of the record of Appeal.

The submission of Counsel on account of the procedure adopted by the prosecution/respondent and the Court on the 8th June, 2017 at page 44 of the record is irregular and unknown to law particularly when looking at the circumstances and the way and

manner the trial was conducted, ditto the trial within trial. He said that going by the record of appeal, the Prosecution’s case began on the 8th June, 2017 and closed on same date. (See page 38-47 of the record). Counsel contended that what is really baffling is the procedure adopted by the Court in admitting the statement of the Appellant.

Learned Counsel then took the opportunity to inform Court what actually transpired with regards to the manner the ruling of the trial within trial was delivered. He said that the Respondent closed its case on the 26th July, 2017 and the Appellant through his Counsel requested for a date to open his defence and that the Court adjourned the matter to 21st September, 2017 for defence. (See page 50 of the records of Appeal). But that surprisingly when the Court resume sitting on the 12-10-2017, Mr. L.H. Garba the learned DDPP urged the Court to deliver a ruling in the trial within trial already conducted and expected to abide the judgment of Court, to be delivered before the final addresses.

According to Counsel, the Court in its wisdom agreed and delivered its ruling, and ordered that the statement

sought to be tendered are admitted and marked as Exhibit A and A1. See Page 54 of the record. The argument of Counsel is that a careful look at the way and manner the trial Court tried to wind back the hand of the clock in the conduct of the Trial within Trial has left the Court with two Exhibits A, the cutlass have earlier on been admitted and marked as an Exhibit A. The submission of Counsel is that that the trial Court fell into grave error as to which of the two Exhibits A the Court relied upon in arriving at its judgment convicting and sentencing the Appellant to death by hanging. Counsel urged this Court to so hold.

Counsel also contended that it is obvious in our corpus juris, that the offence of Culpable homicide punishable with death under the Penal Code has been the subject of the generous and consistent espousal of this Court in cases too numerous to mention here. Against this position, Counsel cited the case of TAJUDEEN ILIYASU vs. THE STATE (2015) LPELR -24403 (SC) 24-26, G-C, where per the apex Court per ARIWOOLA, JSC intoned as follows:
“The three constitutive elements or ingredients of the offence which must be proved in order

to secure a conviction under this section have been, generously outlined in case law, Maigari v. State (2013) 6-7 MJSC (Pt. 11) 109, 125, citing Ochemaje v. The State (2008) 45 WRN 1; (2009) SCNJ 143, Daniel v. The State (1999) 6 NWLR (Pt. 1980) 433, Gira v. State (1996) 4 NWLR (Pt. 428) 1, 125”.

Against the backdrop of this position, Counsel submitted that the Prosecution is obliged to prove;
1) That the deceased died
2) That his/her death was caused by the accused
3) That he/she intended to either kill the victim or cause him/her grievous bodily harm.

According to Counsel, these ingredients have witnessed consistent espousal in many jurisdictions and he submitted that the Respondents/Prosecution has failed woefully to prove any of the ingredients cited above for the lower trial Court to arrive at its judgment convicting the Appellant.

ISSUE TWO:
“Whether the accused person is entitled to the defence of self defence considering the circumstance of the case.”
In arguing this issue, learned Counsel contended that considering what transpired at the scene, that the Appellant had to defend himself

against the deceased as the facts show that the deceased attacked the Appellant first by stabbing him on the head and that the Appellant ran away with a wound on his head, with blood gushing from his head to the extent of covering his sight. According to Counsel, the deceased did not stop at that as he still met the Appellant and wrestled with him while wielding holding a cutlass. See page 55 lines 13-20 of the records of appeal.

Counsel took the opportunity to say that while all the fighting took place, that none of the prosecution witnesses was an eye witness at the scene, as they (prosecution witnesses) gave testimonies based on what they were told at a point in time or the other. He enthused that none of the witnesses gave testimony that he was present when the incident happened between the deceased and the Appellant.

The further contention of Counsel is that since there is no direct evidence as to who was present at the venue where the deceased attacked the Appellant other than the evidence of the Appellant, that the Court should at least consider the evidence of the Appellant regarding the circumstances and events that took place between him

and the deceased. It was the view of Counsel that the Appellant’s evidence at the trial and his written statement to the police established the fact that there was a fight between the Appellant and the deceased and the deceased caused the fight as a result of a complain he made to his family and his parents scolded him, which provoked him into attacking the Appellant in the bush with a cutlass with the intention of hurting the Appellant and the Appellant had to defend himself by fighting back. According to learned Counsel, the Appellant in his testimony before the Court said he was attacked from behind with a cutlass on his head and that he still ran away. On account of this position, Counsel reproduced the testimony of the Appellant as Accused person at the Court below:
“Umaru Sanda saw a bull amongst my cows which he said his father borrowed the bull to them. I told him that we borrow the bull because our cows do not have a male cow and we want to have a bull among them in order to produce. He then said he will take away the bull which I refused him from doing so and he wanted to stab me with his cutlass but I ran away back to my house where

I informed my father that Umaru Sanda wanted to take away the bull or he will stab me and so I ran away. I told my father to go to their house (Umaru Sanda’s house) and speak to his father to prevail on him to stop pursuing me in the bush with a cutlass. My father went to their house and met his mother and informed her of what their son (Umaru Sanda) did to me in the bush. My father then pleaded with them to speak to their son to stop fighting me. I later went back to the bush where I was rearing my cattle. When his parent scolded him not to fight me, he became provoked and went to me in the bush along with one other person who I do not know who asked me why I reported Umaru Sanda to his parents and I said I wanted to avoid situation where Umaru will stab me with a cutlass. From there I just heard a stab on my head, I still ran away with the wound on my head with blood coming from my head even covering my sight. He still met me and wrestled with me holding a cutlass, the 2nd person then came and removed the cutlass from Umaru Sanda and also pursued him and wanted to snatch the cutlass from him. In his attempt to stab me he then stabbed (Umaru Sanda) who then

rose from the ground and pursued me but I ran away to our house and never saw him again”.

The argument of learned Counsel is that from the reproduced testimony of the Appellant it is evident that he only defended himself when his life was endangered by the act of deceased. He further argued that it was never in doubt that the deceased was bigger than the Appellant in size and that by implication the deceased, much powerful than the Appellant who had to act to save his own life. On what constitutes the defence of self-defence, Counsel cited the case ofEZE vs. STATE (2015) ALL FWLR (PT. 811) 1416 PARAS B-C where the Court held that;
“…Self defence is a complete answer to a charge of murder. To avail himself of the defence, an accused person must show that his life was so endangered by the act of the deceased that the only option left for him to save his own life was to kill the deceased. He must show that he did not want to fight and was prepared to withdraw…”

In the further argument of learned Counsel, he said that it is clear from the Appellant’s testimony before the Court that the Appellant’s

life was endangered by the act of the deceased and that he was not ready to fight with the deceased. Counsel contended that in law whenever the defence of self-defence is raised by an accused, apart from the accused leading evidence to show that he is entitled to the defence, the onus is still on the Prosecution to disprove it. He said that in the instant case, the Prosecution could not disprove the defence raised by the Appellant under cross examination.

It is further argued by Counsel that none of the witnesses called by the Prosecution was present at the material time when the incident happened between the Appellant and the deceased and that it is only the unchallenged and uncontroverted evidence of the Appellant that can be relied upon to unravel exactly what took place at the scene of crime.

On the Appellant’s testimony where he said the deceased still wrestled with him while he held a cutlass, Counsel referred Court to page 55 of the records of appeal and submitted that in law where evidence was not challenged or controverted such evidence is good and should be credibly relied upon by the trial Court. See the case of

MICHAEL EBEINWE vs. STATE (2011) 3 SCM AT PG. 56 PARA C-D. Counsel finally urges this Court to hold that the Respondent failed to prove its case and that the defence of self defence is available to the Appellant and that the Appellant should be discharged and acquitted.

Learned Counsel also submitted that if, by any chances this Court is persuaded by the Respondent’s case that the Appellant was rightly convicted, he urged this Court not to allow the sentence of the Appellant under Section 221(b) of the Penal Code as charged to stand, but rather should impose a lesser offence under Section 222 sub (4) of the Penal Code, considering the nature and circumstances of the case, which shows glaringly that there was no Actus-Reus on the part of the Appellant; and the fact also that the deceased attacked the Appellant first while they were in the bush.

The argument of Counsel is that this Court has the power to convict the Appellant for a lesser offence even when he was not charged with the lesser offence under the provision of Section 218(2) of Criminal Procedure Code which provides as follow;
“218(2) when a person is charged with an offence and facts are

proved which reduce it to a lesser offence; he may be convicted of the lesser offence although he is not charged with it”.

Against the backdrop of the foregoing, Counsel told Court that the above provision was considered by this Court in the case of GONI vs. STATE (2016) ALL FWLR (PT. 817) 666 PARAS B-C where the Court held inter alia;
“…by the provision of Section 217 and 218 of the Criminal Procedure Code, the Court of appeal has power to substitute a conviction for a lesser offence than the offence charged whenever that it is appropriate to do….”

Counsel finally urged this Court to discharge and acquit the Appellant and/or to consider his request for a conviction on the lesser offence in the alternative.

RESPONDENT;
ISSUE ONE:
Whether from the pieces of evidence adduced before the lower Court: the Respondent has proved the case of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code against the Appellant beyond reasonable doubt. (Grounds 1, 2, 3, 6 & 8)
Learned Counsel for the Respondent opened his arguments by submitting that the Respondent in the

instant case proved its case beyond reasonable doubt and that the law imposes a duty on the Prosecution to prove the main ingredient of the offence charged against the accused person to the satisfaction of the trial judge. See AFOLALU vs. THE STATE (2010) 43 NSCQR 227 AT PAGE 242-243. It was further submitted that the Respondent has proved that the death of a human being has actually taken place i.e. the death of one Umaru Sanda (Wakaso) ‘M’. Arising from this submission, Counsel referred to the testimonies of PW2, PW3, PW4 and PW5; and referred also to Exhibits ‘C’, ‘C1’ ‘D’, ‘D1’, ‘E’ and ‘E1’ as well as testimony of DW1. [See pages 40-42, 42-43, 44, 50-51, 54, 28-32, 110-112, 113-114 & 115-117 of the records].

As for the second ingredient, Counsel referred to Exhibits ‘C’ ‘C1’, ‘D’, D1’, ‘E’ and ‘E1’ and stated that the deceased died on the spot, based on the evidence given by PW3 and PW5, who later observed the corpse of the deceased, and testified that the corpse had multiple cutlass cuts on the right

hand and head. [See pages 110-112, 113-114, 115-117, 45 and 48 of the records]. Similarly, Counsel enthused, that the Appellant as DW1 also informed the Court that the deceased was cut on the head. For this reason, Counsel said that there is no reason for this Court to doubt such uncontroverted, unchallenged evidence. He urged the Court to hold the aforesaid evidence as truth. [See page 55 of the records].

In respect of the third ingredient, it is submitted by Counsel, that the Appellant/accused person in all his confessional statements in Exhibits ‘C’, ‘C1’, ‘D’, ‘D1’, ‘E’ and ‘E1’ admitted that he used his cutlass/Machete, Exhibit ‘A’ and inflicted such bodily injuries to the deceased’s hand and head, a vital organ of the body. Counsel further submitted that the ‘Appellant/ accused knew or has reason to know that death would be the probable and not only the likely consequence of his act or grievous bodily harm was its probable consequence’. [See pages 110-112, 113-114, 115-117, 45 and 48 of the records].

Learned Counsel also submitted that

Exhibits C, C1, D, D1, E and E1 proved the fact that constitutes one of or all the elements of the crime to be proved and or identifies the person who committed the offence. See JAMES IGBINOVIA vs. THE STATE (1981) 2 SC. 5 @ 17-18. He added that confessional statements are usually the best means by which criminal cases are established. See GIRA vs. THE STATE (1996) 4 SCNJ 94.

According to learned Counsel, medical evidence is not always essential where as in this case the victim died on the spot or in circumstances in which there is abundant evidence of the manner of death. He cited the case of MICHAEL OJI OGBU vs. THE STATE (1992) 8 NWLR [PT. 259] 255 AT 260 and AKPUENYA vs. THE STATE (1976) 11 SC 267 AT 278 on the issue. Counsel emphasized that medical evidence relied upon in the prove of death is not essential in circumstances where [1] there is evidence of that death of the deceased and [2] there is evidence that it is as a result of the unlawful and intentional act of the accused. See R. vs. JOHNSON NWAKOCHA (1949) 12 WACA 453.

Against the backdrop of this position, Counsel contended that the combined effect of the testimonies of PW3 & PW5

and the contents of Exhibits C, C1, D, D1, E and E1 on the cause of death of the deceased have not been controverted or discredited and that the deceased therefore died as a result of the accused person’s act. In the instant case, Counsel further contended, where the deceased was attacked with a lethal weapon, Exhibit ‘A’ i.e. a sharp and piercing cutlass on the hand and head would probably result in deceased’s instantaneously death and that it is hardly necessary for the Prosecution to prove the cause of death by medical evidence. According to Counsel, once a nexus is established between the act of the accused and the death of the deceased, proof beyond reasonable doubt is attained. See OLALEKAN vs. THE STATE (supra) @ 207.

In response to the Appellant’s Counsel submission that the Court below misdirected itself in the application of the law to the facts of the case when it held:
“…Also the evidence of PW3 and 5 who saw the corpse and the injuries inflicted on the deceased, the Court no doubt believed that the death of deceased Umaru Sanda was caused by the act of the accused person Abubakar Mohammed.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Counsel submitted that as rightly held by the trial judge, testimonies of PW3 and 5 though not eye witnesses to the commission of the crime, but that their testimonies fully corroborated Exhibits ‘C’, ‘C1’, ‘D’, ‘D1’, ‘E’ & ‘E1’ in all material facts and that for this reason, the contention of the Appellant’s Counsel is misleading. On the issue of hearsay evidence as regards the testimonies of the PW3 and 5, learned Counsel disagreed that the testimonies of the said PW3 and 5 are hearsay evidence as the duo testified in respect of the events which they personally witnessed and not as to what they were told. He added that the duo’s testimonies depicted the gruesome condition in which the deceased’s body was found and that both witnesses testified to what each had seen or observed personally. See LEKAN OLAOYE vs. STATE (2018) 73 NSCQR 1309 at page 1350.

On the contention of Appellant’s Counsel with regards to the fact that the confessional statements relied upon by the Prosecution cannot stand the test of time because Exhibits D, D1, E and E1 were not

properly tendered and admitted before the lower Court. More specifically, Counsel reacted to the submission of Appellant’s Counsel with regards to the documents tendered and admitted in evidence and marked as Exhibit ID1 and ID1A. He said that the documents were not admitted in evidence but at that stage were only marked for identification purposes.

In respect of the contention of Appellant’s Counsel when he said that a defective procedure was adopted in tendering and admitting the confessional statements recorded by PW2, Counsel submitted that the procedure adopted was not irregular saying in essence, that the effect of PW2 adoption of his earlier testimony is that he adopts his earlier testimony as to the procedure he followed in recording the additional statement. Fortunately, Counsel said that the defence did not cross examine him on that. [See page 44 of the records]

Learned Counsel further contended that although the Appellant as Accused person raised an objection when his extra-judicial statement was being tendered in Court, bothering on the issue of involuntariness, but that his evidence in chief in the course of trial within trial

revealed that what the Appellant actually meant to do was to retract his statement. Counsel said that in the trial within trial, the Appellant in his testimony as DW1 had this to say;
“I did not make any statement to the police and I cannot remember signing any document with the police.”

And that when shown the documents, he had this to say:
“I see the documents sought to be tendered. I do not know anything about them; the Arabic writing is not mine.” [See page 43 of the records].

As far as learned Counsel is concerned, this is a retraction or denial of Appellant’s extra judicial statement. This is also in clear contradiction of what his Counsel informed the Court about. Against the backdrop of this position, Counsel cited the case of OKORO vs. STATE (1993) 3 NWLR 424: where the Court had this to say on the subject;
“The appellant who was charged with the murder of the deceased made two confessional statements to the police. In the first, he stated that he was not the one who killed the deceased. In the second statement, he admitted that he was the person who killed the deceased. At

the trial, he alleged that he did not make the second statement voluntarily. During the trial within trial on the admissibility of the second statement, he alleged that the statement was not read to him and that he was forced to sign it. At another stage, he said that he made the statement. The trial judge admitted the statement and convicted the accused. It was held that: (1) where an accused person objects to the admissibility of a confessional statement on the ground that the statement was not made voluntarily, it is for the judge to decide on the voluntariness of the statement by considering a trial within trial; (2) where the accused objects to the admissibility of confessional statement on the ground that he never made the statement at all, a trial within trial is unnecessary, unwarranted and inappropriate; (3) the requirement of a trial within trial is not applicable where the objection is that the statement was not read to him before he signed it; (4) when the allegation is that the confession was not voluntary, the effect is that the accused admits that he made the statement but that he did so as a result of force or inducement. When the objection is

that the statement was written and was not read to the accused before he signed it. The accused does not admit making the statement but contends that although his signature appears of it, the statement was not his; (5) if the trial judge finds that the statement was made by the accused, he will treat it as part of the evidence and if he finds that the statement was not made by the accused, he will disregard it completely.”
(Underlined, that of Counsel for emphasis.)

Counsel urged this Court to resolve this issue in favour of the Respondent.

ISSUE TWO;
Whether considering the surrounding circumstances of the instant case, the Appellant is entitled to the defence of provocation, self-defence or any other defence. (Grounds 4, 5 & 7)
Learned Respondent’s Counsel contended that the defense of self-defense is not available where the person attacked used a greater degree of force than was necessary. See AUGUSTINE DURU vs. THE STATE [1993] SCNJ 9. Counsel further contended that the Appellant’s claim that he acted in self defence cannot avail him going by the degree of force he said he used in defending himself. This,

Counsel said was the finding of the Court below at pages 101-103 of the records. According to Counsel, in Exhibits C and C1 recorded on the 17-02-2015 immediately after his arrest, the Appellant states that the deceased hit him with a cutlass, which was in its sheath on his head he (the accused person) then drew out his cutlass and cut him (the deceased) on the head and he also cut him (the deceased) on his hand.

Counsel also referred to Exhibits D and D1 recorded on 24-02-2015, where the Appellant as an accused person stated that the deceased attacked him but he did not unsheath his cutlass and that he pushed him to the wall, then he drew out his cutlass and cut him on his hand and then that his cutlass dropped, while he ran towards him with a stick but he did not strike or hit [beat], while he once again struck him on the head twice. As a result of the foregoing, Counsel submitted that the Appellant portrayed a scenario that the deceased was the assailant but let the cat out of the bag when he stated that the deceased could not get at him but that he struck the fatal blow, which impact succeeded in disarming the deceased and instead of fleeing he

inflicted two deadly blows on the deceased’s head.

Learned Counsel also relied on Exhibits E and E1, which is the additional statement made by the Appellant, recorded on the 02-03-20015, in which the Appellant stated that the deceased had turned to leave the scene and was not aware that he was going to strike him; and that he drew out his cutlass and struck him on his right hand, which resulted in his cutlass falling down from his hand, but that the deceased attempted to hit him back with a stick but that he failed to reach him, while he dealt two deadly strikes on the head of the deceased. From what transpired at the scene as described by the Appellant in his additional statements in Exhibit E and E1, that it is obvious that the Appellant was actually the assailant.

On the question of the Appellant making two statements, Counsel submitted that the law is trite that the trial judge will be right to take the one less favourable to him. SeeSULE vs. THE STATE (2009) 8 SCM 177 also cited in OLUWAFEMI ALO vs. STATE (2016) 12 NCC 44 at page 94. The argument of Counsel on the issue is that the statement as contained in Exhibits E and E1 is less

favourable to the accused person and that the account of all that transpired between the parties is very vivid that from the beginning to the end, showing quite glaringly that the Appellant was the aggressor.

Counsel further argued that if actually he was afraid of the deceased, as he claimed, the reasonable thing for him to have done was to have taken to his heels. Counsel said that it is equally in evidence that while the deceased was fleeing from the fight, the Appellant was said to have gone after him and struck him on the head with a cutlass. On the strength of the foregoing, Counsel urged this Court to hold that the Appellant not only used a greater force than was necessary to repel the perceived attack, but was actually the attacker. Counsel referred Court to SECTIONS 59, 60, 62, & 63 Penal Code and the cases of UWAGBOE vs. STATE (2008) 34 [PT. II] NSCQR 664 @ 683; SULE vs. STATE (2009) 38 [PT II] NSCQR 1069 @1092 & 1102; OBOT vs. QUEEN (1932) 14 WACA 352; QUEEN vs. STEPHEN OJI (1961) ALL NLR 262. Counsel urged this Court to resolve this issue in favour of the Respondent.

RESOLUTION OF APPEAL
The case against the Appellant was

that on or about the 16th day of February, 2015 at about 1700 hours in the bush at Tungar Magaji Village via Zaria Kala-Kala District in Koko-Besse Local Government Area of Kebbi State did cause the death of one Ummara Sanda Wakaso (m) by cutting him on his head and arm with a cutlass. The Appellant was arraigned before the Court below for the offence of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code. [See page 4 of the records]. The Appellant pleaded not guilty to the charge, hence the Respondent called five witnesses to prove its case against the Appellant. [See pages 38-39, 39-45, 45-46, 46, 48 – 50 & 2 of the records].

The Respondent also tendered without objection Exhibits ‘A’, ‘B’, ‘C’, and ‘C1, which were admitted in evidence. [See pages 39 & 49 of the records]. However, the Appellant objected to the admissibility of Exhibits ‘D’, ‘D1’, ‘E’ and ‘E1’, hence a trial within trial was conducted and the objection was overruled, same exhibits were admitted in evidence. [See pages 40-42, 42-43, 44, 50-51, 54, & 28-32

of the records]. At the close of the Respondent’s case, the Appellant testified in his defense and he did not call any other witness. [See pages 54-56 of the records]

In arguing issue one dealing with the vexed question of whether the Prosecution adduced sufficient evidence to prove the offence of culpable homicide punishable with death as stipulated under Section 221(b) of the Penal Code vis-à-vis the question of whether the prosecution proved all the elements of the said offence against the Appellant, learned Appellant’s Counsel began by remind this Court of the duty of the Prosecution to lead credible evidence pointing irresistibly to the guilt of the accused person(s) beyond reasonable doubt. He also contended that in treating the issues emanating from the role as played by the Prosecution in this matter, that the learned trial Court misdirected itself in the application of the law to the facts when it held that the Prosecution succeeded in establishing the case against the Appellant.

This issue raised, no doubt requires a careful examination of the printed record of Appeal to resolve. The testimonies of the PW2, PW3, PW4, PW5

and DW1, along Exhibits ‘C’, ‘C1’ ‘D’, ‘D1’, ‘E’ and ‘E1’ [See pages 40-42, 42-43, 44, 50-51, 54, 28-32, 110-112, 113-114 & 115-117 of the records] point irresistibly to the culpability of the Appellant. Here is a case in which the deceased was said to have died on the spot. See Exhibits ‘C’ ‘C1’, ‘D’, D1’, ‘E’ and ‘E1’ in this regard and the evidence given by the PW3 and PW5, who later observed the corpse of the deceased, and testified that the corpse had multiple cutlass cuts on the right hand and head. [See pages 110-112, 113-114, 115-117, 45 and 48 of the records]. This clearly established the second element of the offence. What about the evidence of the Appellant, who testified as DW1? His evidence also established the fact that the deceased was cut on the head. Against the backdrop of this position, this Court cannot fathom any reason why the Court would have refrained from acting upon such uncontroverted and unchallenged evidence. [See page 55 of the records].

On account of the third element, it remains

incontestable that the Appellant as an accused person, in all his confessional statements in Exhibits ‘C’, ‘C1’, ‘D’, ‘D1’, ‘E’ and ‘E1’ admitted that he used a cutlass/Machete, admitted as Exhibit ‘A’ in inflicting bodily injuries to the deceased’s hand and head. This Court need not emphasize that the Appellant had reason to know that death would be the probable and not only the likely consequence of his act or grievous bodily harm was its probable consequence. [See pages 110-112, 113-114, 115-117, 45 and 48 of the records].

It is also clear that Exhibits C, C1, D, D1, E and E1 further established the fact and/or identified the protagonist of the attack which led to the death of the deceased. Of course confessional statements are usually the best means by which criminal cases are established. See JAMES IGBINOVIA vs. THE STATE (1981) 2 SC 5 @ 17-18; GIRA vs. THE STATE (1996) 4 SCNJ 94.

On what may have constituted the probable cause of death, the combined effects of the testimonies of the PW3 and PW5 becomes handy in this regard and so does the contents of

Exhibits C, C1, D, D1, E and E1, which were neither discredited nor controverted as it has to do with the fact that the deceased died as a result of the act of the Appellant. The sum total of the unchallenged evidence is the deceased was indeed attacked with a lethal weapon, Exhibit ‘A’ i.e. a sharp and piercing cutlass on the hand and head, which instantaneously resulted in the death deceased. In such a situation, Medical certificate is hardly necessary in establishing the cause of death. The position is that once a nexus is established between the act of the accused and the death of the deceased, proof beyond reasonable doubt is attained. See OLALEKAN vs. THE STATE (supra) @ 207.

Concerning the veracity of the evidence of the PW3 and 5, and the contention of Appellants Counsel that the Court below misapplied the law to the facts, this Court does not share that view as the Court below rightly held that the testimonies of PW3 and 5 though, not eye-witnesses to the commission of the crime, but that their testimonies fully corroborated Exhibits ‘C’, ‘C1’, ‘D’, ‘D1’, ‘E’ & ‘E1’ in all

material facts.

On the contention that the evidence of the PW3 and 5 were hearsay, this Court is unable to agree with learned Appellant’s Counsel on the issue as the duo testified, based on the records testified as to the events, which they personally witnessed and not as to what they were told. In their evidence, they merely described the gruesome condition in which the deceased’s body was found. Indeed, both witnesses testified as to what each had seen or observed personally. See LEKAN OLAOYE vs. STATE (2018) 73 NSCQR 1309 at page 1350.

On the so called alleged defective procedure, which Appellant’s Counsel made a heavy weather about, and which he said the lower Court adopted in tendering and admitting the confessional statements recorded by PW2, the settled position of the law is that a party who acquiesces to an irregular procedure by the Court cannot be seen to complain if he did not raise his objection to the procedure timeously at the time of trial. See BLESSING vs. FRN (2015) LPELR 24689 SC. It would be recalled that the grouse of learned Appellant’s Counsel in this case had to do with the delay of the learned

trial judge at pages 43 and 44 of the records who had rather ruled that he would be taking the ruling on the trial within trial alongside the final judgment. But as the records also show, this only to be a temporary decision of the Court, as the learned trial eventually delivered its ruling on the trial within trial admitting the Exhibits before the final judgment of Court was separately delivered.

Learned Appellant’s Counsel not only acquiesced to the blunder committed by the learned trial Court, but also failed to avail the Court of his role to be of assistance to the Court in achieving the ends of untainted justice between the parties. Apart from this, Counsel did not say that the Appellant by that delay suffered any miscarriage of justice.

In respect of the objection raised concerning the question of admissibility of the extra-judicial statement of the Appellant at the point of its being tendered in evidence, it would be recalled that the answers proffered by the Appellant during cross examination in the course of trial within trial betrayed the actual intentions in raising then said objection in the sense that he had raised the objection

not with the intention of protesting the perceived involuntariness, but rather his intention to voice his opposition of being credited with a statement he has not made. This, therefore boils down to a protestation bothering on retraction of the statement.
The Appellant in his testimony as DW1 during the trial within trial, had this to say;
“I did not make any statement to the police and I cannot remember signing any document with the police.”
And when shown the documents, he had this to say:
“I see the documents sought to be tendered. I do not know anything about them; the Arabic writing is not mine.” [See page 43 of the records].
Against the backdrop of this position, this clearly boils down to a clear case of retraction, which in the first place shouldn’t have attracted the need for a trial within trial. See the case of OKORO vs. STATE (1993) 3 NWLR 424: on the issue and several reported cases.

In respect of the second issue dealing with the question of whether the Appellant is entitled to the defence of self defence considering the circumstance of the case, Counsel contended that what transpired

at the scene, was that the Appellant had to defend himself against the deceased as the facts show that the deceased attacked the Appellant first by stabbing him on the head and that the Appellant ran away with a wound on his head, with blood gushing to the extent of covering his sight and that this did not deter the deceased who pushed on, met the Appellant and wrestled with him while wielding/holding a cutlass. See page 55 lines 13-20 of the records of appeal.

greater degree of force than was necessary in repelling the attack. See AUGUSTINE DURU vs. THE STATE [1993] SCNJ 9; NWUZOKE vs. STATE (1988) NWLR (PT. 72) 529 and several other reported cases on the subject.
A close scrutiny of the record, shows that Appellant’s plea of the defence cannot avail him, going by the degree of force he said he used in defending himself. At pages 101-103 of the records and particularly in Exhibits C and C1 recorded on the 17-02-2015 immediately after the Appellant’s arrest, he is recorded to have said that the deceased hit him with a cutlass, which was in its sheath on his head and that he (the Appellant) then drew out his cutlass and cut him (the deceased) on the head and the hand. Apart from this, in Exhibits D and D1 recorded on 24-02-2015, the Appellant was once again quoted as having said that the deceased attacked him but he did not unsheath his cutlass and that he pushed him to the wall, then drew out his cutlass and cut him on his head and hand and then that his cutlass dropped, while he ran towards him with a stick but he did not strike or hit [beat], while he once again struck him on the head twice.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The graphic description of the events that transpired at the scene, even from the Appellant’s own showing, showed that the deceased was not necessarily the assailant on the fateful date, but actually the victim of the attack. Going by the trajectory of the Appellant’s own narrative of the events of the day showed that at the time of the melee the deceased could not get at him, while he struck twice, the fatal blows with his cutlass, which succeeded in disarming the deceased and sending him to his death. Perhaps, the additional statements of the Appellant admitted as Exhibits E and E1, recorded on the 02-03-2015, may just about put the final nail to the coffin of the Appellant’s plea of self defence.
Here, the Appellant had been clear in stating that the deceased had turned to leave the scene and was not aware that he was going to strike at him; and that he drew out his cutlass and struck him on his right hand, which resulted in deceased’s cutlass falling down from his hand, and that that was when the deceased attempted to hit him back with a stick but that he failed to reach him, while he dealt two deadly strikes on the head of the

deceased. From what transpired at the scene as described by the Appellant in his additional statements in Exhibit E and E1, it is obvious that the Appellant was indeed the assailant. Furthermore, it is in evidence that while the deceased was fleeing from the fight, the Appellant was said to have gone after him and struck him on the head with a cutlass.
On the strength of the foregoing, this Court hereby finds and holds that the Appellant not only used a greater force than was necessary to repel the perceived attack, but was actually the attacker. See Sections 59, 60, 62, & 63 Penal Code and the cases of UWAGBOE vs. STATE (2008) 34 [PT. II] NSCQR 664 @683; ULE vs. STATE (2009) 38 [PT. II] NSCQR 1069 @1092 & 1102; OBOT vs. QUEEN (1932) 14 WACA 352; QUEEN vs. STEPHEN OJI (1961) ALL NLR 262.

In the final analysis, this Appeal fails and it is accordingly dismissed. Consequently, the judgment the High Court of Justice in Kebbi State, sitting in Bernin-Kebbi Judicial Division, High Court No: 1, Coram: E. A. KARATU, J in Charge No: KB/HC/24C/2016 is hereby affirmed.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of an

advanced) reading of the lead judgment just delivered by my learned brother, Oho, JCA. I fully agree with his reasonings and conclusion that this appeal totally lacks merit and ought to accordingly be dismissed.

This appeal is also dismissed by me. I abide by the consequential order affirming the judgment of the lower Court delivered on 6th March, 2018 in charge No. KB/HC/24C/2016.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have read the draft of the judgment just delivered by my learned brother, FREDERICK. O. OHO JCA, and I agree entirely with his reasoning and conclusions. The appeal is bereft of merit. Justice demands that the guilty person should be convicted. In the depth and loneliness of his grave at Tunga Magaji Village via Zaria Kalakala District in Koko Local Government Area of Kebbi State, the body of Ummaru Wakaso feels no pain, but his soul cries out loudly and clearly to the high heavens for Justice. Equally the Tunga Magaji community whose norms has been desecrated are also crying out for Justice.

It is for this reason that I too dismiss the appeal. I abide by the consequential orders in the lead judgment.

Appearances:

NURA BELLO, ESQ. For Appellant(s)

LAWAL HUDU GARBA, ESQ. (DDPP M.O.J. B/Kebbi) For Respondent(s)