YUSUF MUSA v. THE STATE (2014)

YUSUF MUSA v. THE STATE

(2014)LCN/7330(CA)

In The Court of Appeal of Nigeria

On Friday, the 27th day of June, 2014

CA/K/282/C/2013

RATIO

EVIDENCE: BURDEN AND STANDARD OF PROOF; THE BURDEN AND STANDARD OF PROOF IN EVERY CRIMINAL TRIAL

The law is settled that in every criminal trial, the prosecution has the onerous and untransferable duty of proving its case beyond reasonable doubt against an accused person to succeed in securing a conviction. This is because an accused person is by our law, presumed to be innocent until proved guilty by his accuser. As Kutigi, JSC, as he then was, put it in the case of WILLIAMS v. STATE (1992) NWLR (Pt. 261) 515, for the duration of the trial, an accused person may not utter a word he is not bound to say anything. The duty is on the prosecution to prove the charge against the accused person beyond reasonable doubt. The prosecution can only succeed in doing so by proving each and every necessary and vital ingredients of the charge by credible evidence. per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: PROOF BEYOND REASONABLE DOUBT: WHEN IS THE PROSECUTION SAID TO HAVE PROVED HIS CASE AGAINST AN ACCUSED BEYOND REASONABLE DOUBT

The prosecution can be said to have proved a case against an accused person when it succeeds in adducing compelling and conclusive evidence with a degree of compulsion consistent with high degree of probability. Thus, if evidence is strong against a man as to leave only a remote probability in his favour which can be dismissed with the sentence “of course” it is possible but not the least probable, the case is proved beyond reasonable doubt. See BELLO SHURUMO v. THE STATE (2010) 19 NWLR (Pt. 1226) 73. However, proof beyond reasonable doubt does not mean beyond shadow of doubt, as absolute certainty is impossible in any human adventure including the administration of Justice. Per Oputa, JSC (of blessed memory) in MAFUTAU BAKARE v. THE STATE (1987) 3 SC 1 at 32. per. AMINA AUDI WAMBAI, J.C.A.

CRIMINAL LAW: CULPABLE MURDER; THE INGREDIENT OF CULPABLE MURDER

What are the essential and vital ingredients which the prosecution ought to prove against the Appellant for the offence of culpable homicide punishable with death?
The essential ingredients to be proved beyond reasonable doubt by the prosecution are:-

“1. That the death of a human being has actually taken place;

That such death was caused by the accused person;
That the act was done by the accused either with the intention of causing death, or when he knew or had reason to know that death would be the probable and not only likely consequence of his act.”

See MUSA v. THE STATE (2009) 15 NWLR (Pt. 1165) 467 C-E, OCHEMAJE v. THE STATE (2008) 15 NWLR (Pt. 1109) 57 at 86 A-C. per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: CONTRADICTORY EVIDENCE; THE CONDITION FOR CONTRADICTIONS IN THE PROSECUTION’S CASE TO MAKE THE EVIDENCE UNRELIABLE AND BE FATAL TO THE PROSECUTION’S CASE
It is settled Law that for contradictions in the prosecution’s case to make the evidence unreliable and be fatal to the prosecution’s case, the contradictions must not only be substantial or material, they must substantially, relate to the material ingredients of the offence and not just to any issue or matter that does not relate to the substance of the main ingredients of the offence. Thus, minor inaccuracies, discrepancies and even minor contradictions that do not touch on the core substance of the case cannot be regarded as material contradictions. See MAIGARI v. THE STATE (2010) ALL FWLR (Pt. 546) 405 at 429 paragraph D-H See also NASAMU v. THE STATE (supra) per. AMINA AUDI WAMBAI, J.C.A.

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

YUSUF MUSA Appellant(s)

AND

THE STATE Respondent(s)

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the Jigawa State High Court sitting at Hadejia delivered on 23/12/2008 by Ubale Ahmed Taura J., wherein the Appellant who was convicted for the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code and sentenced to death by hanging.
The Appellant then an accused person was arraigned before the court on the following charge, to wit:-

“That you YUSUF MUSA alias DABO (M) on or about the 27th July, 2007 at about 12:30 hours at Burku Village in Mallam Madori Local Government Area within Jigawa Judicial Division Committed the offence of culpable homicide by doing an illegal act to wit; hitting one Muhammadu Hamza on the head and other parts of the body with stick with the knowledge that death would be the probable consequence of your act and you thereby committed an offence punishable under Section 221 of the Penal Code.”

The Appellant pleaded not guilty to the charge.
In support of the charge, the prosecution called five witnesses and tendered four exhibits. The Appellant called no witness but rested his case on that of the prosecution.
The prosecution’s case was that on Friday the 27th day of July, 2007 at Burku Village in Mallam Madori Local Government Area of Jigawa State, while Tabawa Haruna (PW2) was trashing her millet she saw Dabo (the Appellant) and Kasimu (PW1) running and heard the Appellant saying that he would kill PW1. She held both the Appellant and PW1 and later allowed both of them to depart separately.

Thereafter, PW2 heard crying in the nearby bush and on reaching there, she saw the deceased laying down, his brain coming out of his head, and his stomach swollen. According to PW1, while himself and deceased brother Muhammadu Labiru (the deceased) were sitting down, the Appellant and one other person came and started beating the deceased and PW1 with a stick. The Appellant beat the deceased with the stick on his head and other parts of his body. The head of the deceased was broken his brain matter came out, his stomach burst and his duodenum came out. PW1 was also beaten by the Appellant who threatened to kill PW1 if he revealed to anyone the news of what he (Appellant) had done. PW 3 also who went to the scene after the incident, saw the deceased alive but his head was broken and had other injuries on his body.

The father of the deceased Hamza Amadu, (PW4) who had sent his two sons, the deceased and PW1 to rear animals on the fateful day, was then informed that there was a fight and his son (the deceased) was killed. On reaching the scene, he met him (the deceased) laying down. PW4 picked his two sons into a truck and took them to the Hospital in Shayya, reported the matter to the District Head who advised him to report to the police. He reported to the police who followed him to take the deceased and PW1 to Hadejia General Hospital where the deceased died the following day at about 7:00pm.

The case was transferred from the Mallam Madori Police Station to the Homicide section of Dutse C.I.D. Office where Inspector Yakubu Philips, PW5 was detailed to investigate the case. PW5 recorded the statement of the accused (now Appellant) which was tendered and admitted in evidence without objection as exhibit I, the medical report as exhibit 2, two photographs as exhibits C3, and C3 (1), while the stick was admitted as exhibit 4.
At the close of evidence for the prosecution, written addresses were ordered as the Appellant who did not call evidence rested his case on that of the prosecution. In its considered Judgment delivered on 23/12/2008, the learned trial Judge found the Appellant guilty of culpable homicide punishable with death as charged and sentenced him to death by hanging.
Dissatisfied with the said Judgment, the Appellant through his Counsel Nassir Abdu Dangiri sought and was granted extension of time on the 19th June, 2013 to appeal the decision out of time. In his notice of appeal dated 8th May, 2013 and deemed properly filed on the 19/06/2013, the learned Appellant’s Counsel challenged the decision on 16 grounds of appeal.
The learned Respondent’s Counsel, Suleh Umar, Esq., Director, Civil Litigation Ministry of Justice Jigawa State, on the 13/1/2013, Pursuant to order 9 Rule 1 of the Rules of this Court filed a Respondent’s notice of contention to vary the decision of the Lower Court, which notice was deemed properly filed on 26/2/2014, At the hearing of the appeal in compliance with the Rules of this Court both Counsel filed and exchanged their briefs of argument which they all adopted and relied upon.
The Appellant’s brief of argument dated and filed on 06/08/2013 was settled by learned Nassir Abdu Dangiri, while the Respondent’s brief dated 13/11/2013 and deemed properly filed on the 26/02/2014 was settled by learned Suleh Umar, Esq. D.C.L. Ministry of Justice Jigawa State.

In his brief of argument, the learned Appellant’s Counsel raised four issues, thus:-

“1. Whether the trial judge wrongly appraised the evidence on the printed record leading to the conviction and sentencing of the accused/Appellant to death by hanging. (Grounds One and Seven)

2. Whether from the facts and circumstance of this case the learned trial judge properly considered the defence of provocation that is available to the accused person. (Grounds Six, Eleven, Twelve and Thirteen)

3. Whether the learned trial judge properly considered and evaluated the evidence of PW1 who is a minor and who is the only eye witness to the commission of the offence by the accused/Appellant (Grounds Eight, Nine and Ten)

ALTERNATIVELY
Whether the evidence of PW1 can properly form the basis of a conviction of the accused/Appellant having regard to the circumstances it was received, (Grounds Ten and Fifteen)

4. Whether from the facts and circumstance of this case the trial Court was right in convicting and sentencing the accused/Appellant for the offence of culpable homicide instead of a term of imprisonment (Grounds One, Two, Three, Four, Five, Fourteen and Sixteen).”
The Respondent’s Counsel at paragraph 3.0 of his brief of argument distilled two issues for determination from the Appellant’s grounds of appeal and the Respondent’s notice of contention, to wit:-

“I. Whether the learned trial Judge was right in convicting the Appellant having regard to the evidence adduced by the prosecution at the trial.
(Elicited from the Grounds of Appeal)

II. Whether the learned trial Judge was right when he sentenced the Appellant a minor of between 11 to 12 years old to death upon a conviction for Culpable Homicide.

It is my view that two issues would adequately determine this appeal.
These two issues are:-

“1. WHETHER THE LEARNED TRIAL JUDGE PROPERLY EVALUATED THE EVIDENCE BEFORE HIM INCLUDING THE DEFENCE OF PROVOCATION RAISED BY THE APPELLANT IN HIS STATEMENT TO THE POLICE (EXHIBIT I) AND WAS HE RIGHT IN CONVICTING THE APPELLANT FOR CULPABLE HOMICIDE PUNISHABLE WITH DEATH.

2. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE SENTENCED THE APPELLLANT; A MINOR BETWEEN 11 AND 12 YEARS OLD TO DEATH UPON CONVICTION FOR CULPABLE HOMICIDE

(Respondent’s issue No. 2)

ISSUE NO. I
“1. WHETHER THE LEARNED TRIAL JUDGE PROPERLY EVALUATED THE EVIDENCE BEFORE HIM INCLUDING THE DEFENCE OF PROVOCATION RAISED BY THE APPELLANT IN HIS STATEMENT TO THE POLICE (EXHIBIT I) AND WAS HE RIGHT IN CONVICTING THE APPELLANT

The law is settled that in every criminal trial, the prosecution has the onerous and untransferable duty of proving its case beyond reasonable doubt against an accused person to succeed in securing a conviction.
This is because an accused person is by our law, presumed to be innocent until proved guilty by his accuser. As Kutigi, JSC, as he then was, put it in the case of WILLIAMS v. STATE (1992) NWLR (Pt. 261) 515, for the duration of the trial, an accused person may not utter a word he is not bound to say anything. The duty is on the prosecution to prove the charge against the accused person beyond reasonable doubt. The prosecution can only succeed in doing so by proving each and every necessary and vital ingredients of the charge by credible evidence.

The prosecution can be said to have proved a case against an accused person when it succeeds in adducing compelling and conclusive evidence with a degree of compulsion consistent with high degree of probability. Thus, if evidence is strong against a man as to leave only a remote probability in his favour which can be dismissed with the sentence “of course” it is possible but not the least probable, the case is proved beyond reasonable doubt. See BELLO SHURUMO v. THE STATE (2010) 19 NWLR (Pt. 1226) 73.
However, proof beyond reasonable doubt does not mean beyond shadow of doubt, as absolute certainty is impossible in any human adventure including the administration of Justice. Per Oputa, JSC (of blessed memory) in MAFUTAU BAKARE v. THE STATE (1987) 3 SC 1 at 32.

“1. That the death of a human being has actually taken place;

2. That such death was caused by the accused person;

3. That the act was done by the accused either with the intention of causing death, or when he knew or had reason to know that death would be the probable and not only likely consequence of his act.”

See MUSA v. THE STATE (2009) 15 NWLR (Pt. 1165) 467 C-E, OCHEMAJE v. THE STATE (2008) 15 NWLR (Pt. 1109) 57 at 86 A-C.
While the Respondent’s Counsel contends that the prosecution proved all the listed ingredients beyond reasonable doubt to sustain the conviction for culpable homicide punishable with death as charged, the Appellant’s Counsel contends that the conviction should have been under Section 222 (b) of the Penal Code which carries a punishment of a term of imprisonment rather than death under Section 221 (b) of the Penal Code.
Now, the 1st ingredient is whether the death of any human being actually took place, in this case the death of Muhammadu Hamza, or Muhammadu Labiru, or Labiru as he was variously referred to. Apart from the evidence of PWs 1-3 who testified that they saw the head or the skull of the deceased broken with the brain matter out, and his duodenum was also out of his stomach as well as the medical report and PW 4 the deceased father, which all confirmed the death of the deceased, the Appellant does not dispute the fact that the death of the deceased actually took place. There is therefore no need to expend any much time and energy on the consideration of the proof of this ingredient except to hold that the Respondent’s did prove beyond reasonable doubt. That the death of Muhammad Hamza Labiru occurred.

With respect to the 2nd and the 3rd ingredients, although the Appellant’s main grudge with the decision of the lower Court is essentially with the failure or refusal of the lower Court to consider the defence(s) available to the Appellant rather than with the fact that the death of the deceased occurred by the act of the Appellant, learned counsel also picked holes in the Judgment in certain respects.
The Appellant’s complaints are:-

1. That there were material contradictions in the evidence of the prosecution witnesses.

2. That the learned trial judge admitted inadmissible evidence of the Appellant’s bad character and of PW1’s injuries when Appellant was not on trial for that.

3. That the learned trial Judge did not properly evaluate the evidence of PW1, PW2 and PW3 who are minors and also acted on their evidence as well as that of PW4 (the deceased’s father) who are blood relations of the deceased, He relied very heavily on the case of LADO v. THE STATE (1998) 10 SCNJ 1 AT 10.

4. That the learned trial Judge did not consider the defence of provocation raised in the Appellant’s extra Judicial statement to police, Exhibit I.

On the contention that there were material contradictions in the evidence of the prosecution witnesses, the alleged contradictions relate to the evidence of PW1 and PW2. That while PW1 said that when he was also beaten by the accused/Appellant, he was saved by two persons, Ai’ and Tabawa. Tabawa who was PW2, did not testify to the effect that she saved PW1. That her evidence in cross examination was to the effect that she did not meet the Appellant at the scene when she went there and did not see any other thing. That while the learned trial Judge at pp 30-31 attributed to PW2 as having testified that when she heard a cry and went to the place she saw the deceased laying down with water poured on him, PW2 whose evidence is at pages 7-8 never testified that she saw water poured on the deceased. Learned Counsel then wandered where the learned trial Judge got that piece of evidence from, which did not come from any independent witness.
In response, the learned Counsel for the Respondent’s submitted that the evidence of PW1 in cross examination that it was Ai and Tabawa who saved him is pregnant with so many unanswered questions, as to what was he saved from, by who, and when was he saved? Counsel contends that unless answers are given to these questions it would amount to speculation to hold that there was a contradiction between the evidence of PW1 and that of PW2.
Furthermore, he submitted that for a contradiction in the evidence of prosecution witnesses to effect a conviction, such contradictions must be material, substantial, and fundamental to the main issue in question and sufficient to raise doubt as to the guilt of the accused. He relied on IKO v. THE STATE (2001) 14 NWLR (Pt. 733) 221, NASAMU v. THE STATE (1979) 6-9 S.C. 153, among others.
It is settled Law that for contradictions in the prosecution’s case to make the evidence unreliable and be fatal to the prosecution’s case, the contradictions must not only be substantial or material, they must substantially, relate to the material ingredients of the offence and not just to any issue or matter that does not relate to the substance of the main ingredients of the offence. Thus, minor inaccuracies, discrepancies and even minor contradictions that do not touch on the core substance of the case cannot be regarded as material contradictions.
See MAIGARI v. THE STATE (2010) ALL FWLR (Pt. 546) 405 at 429 paragraph D-H See also NASAMU v. THE STATE (supra)
In the instant case the contradiction between the evidence of PW1 and PW2 in that PW2 which did not confirm that she was one of those who saved PW1, as testified by PW1, is not a material contradiction to the prove of any of the ingredients of the charge against the Appellant in respect of the death of the deceased. The alleged contradictions relate to whether PW2 was one of those whom PW1 said came to rescue him when beaten by the Appellant and not as to who came to the rescue of the deceased. The Appellant was not on trial for any offence committed against PW1. He was been tried for the death of the brother of PW1, (the deceased). Thus, any contradiction that pertains to who rescued or did not rescue PW1 cannot be a material contradiction in the prosecution’s case as to how the deceased met his death. It is also important to state that it is the evidence of PW2 that when she was thrashing her millet, the Appellant was running after the PW1, where upon she or they held both of the Appellant and the deceased and later allowed each of them to depart separately.
In any event if a contradiction it were, it did not touch on the important element of what the prosecution needed to prove, nor did it go to the root of the charge against the Appellant.
Contradictions are usually expected in every trial because human memories do not have the same capacities of storing and retrieving events that happen. There is therefore, bound to be minor discrepancies in the account of the same event given by different witnesses. As a matter of fact where the evidence of witnesses are exactly the same, the Court is entitled to suspect such evidence as likely to be the outcome of some tutoring or tutorial.
See DIBIE v. THE STATE (2007) ALL FWLR (Pt. 363) 83 at 110 B-D & 106 E-G.
Similarly, the addition to the evidence of PW2 by the learned trial Judge that “water was poured on the deceased” when PW2 saw him laying down is not material as it neither enhances or diminishes the evidence of PW2 who was the witness. That evidence did not come from PW2 or any witness. Expunging that statement from the record, would not substantially affect either the evidence or the decision of the Court.
I therefore hold that the contradictions complained of in the prosecution’s evidence are not material as to assist the Appellant.
The 2nd complaint of the Appellant’s Counsel against the Judgment of the Lower Court is that the learned trial Judge wrongfully accepted and relied upon the evidence of bad character of the Appellant to convict him. The response of the Respondent’s Counsel contained at paragraphs 5.1.43 to 5.1.44 at pages 29-30 of his brief of argument is that;
“(i) The issue is a fresh one same having not been raised at the Lower Court which cannot be raised in this Court without leave.
(ii) That the issue of Appellant’s bad character does not arise from any of the grounds of appeal.
(iii) That the argument canvassed in support of same by the Appellant’s Counsel relates to a different case. For these 3 reasons, the learned Counsel submitted and rightly too, that the argument does not deserve to be dignified by a response.”
First and foremost, the law is settled that a party cannot without leave of Court canvass a fresh issue at the Appeal Court if same was not raised and considered at the trial Court. See ONEHI OKOBA v. MAMODU & ANOR (1998) 6 NWLR (Pt. 554) 348, TUKUR v. TARABA STATE (1997) 6 SCNJ per Ogundere, JSC and also the unreported decision of this Court in Appeal No. CA/K/151/12 delivered on 17th May, 2013 in the case of WADA v. THE STATE.
It is also settled law that for a party to canvass any issue in his brief of arguments same must have arisen from the grounds of appeal. Any issue canvassed outside the grounds of Appeal only deserves to be discountenanced. See NDUKWE v. THE STATE (2009) 7 NWLR (Pt. 1139) 43 at 74-75 G-A. For these reasons, I am at one with the Respondent’s Counsel that the Appellant cannot be heard to canvass any argument on the contention that the learned trial Judge wrongfully relied on evidence of bad character of the Appellant to convict him. I therefore discountenance the said submission of the learned Appellant’s Counsel at paragraph 2.40 – 2.46 and 4.20 – 4.26 of Appellant’s brief of argument.
The 3rd complaint of the learned Appellant’s Counsel is that the learned trial Judge did not properly evaluate the evidence of PW1, PW2, and PW3 who are minors and blood relatives of the deceased as well as that of PW4, the father of the deceased, and that the Judge did not warn himself of the danger of convicting the Appellant on the evidence of minors and blood relations of the Appellant.
Counsel contends at paragraphs 4.13 and 4.21 of his brief of argument that the learned trial Judge accepted the evidence of PW1 who is minor concerning the injuries he sustained when the Appellant was not standing trial for that offence. Also that the Judge did not warn himself about the danger of relying on the evidence of PW4, the father of the deceased.
Before considering this aspect of the Appellant’s contention I find it necessary to comment generally on some portions of the Appellant’s brief of argument which are confusing, difficult to comprehend and misleading. Learned counsel did not only make wrong references to the relevant pages of the record of proceedings, for instance at paragraph 4.21 references made to what is contained at pages 55 – 58 & 77 of the record are not correct, but also imported facts of the case of Lado v. The State (1998) 6 SCNJ 1, which he relied upon into this case as if those were the facts of this case. (See for example paragraph 4.20, 4.21 of his brief of argument at pages 10 – 11 where the counsel related the facts of Lado’s case (supra) canvassing that those were the facts of this case and referring to page 6 of the record which of course does not contain the said facts. There is nowhere in the record where PW2 & PW3 testified that the Appellant inflicted injuries, on them. These are but only a few instances of the misleading argument of the counsel which makes it cumbersome to discern as to whether counsel bases his argument on the facts of this case or on the facts of the case relied upon. This makes the brief of argument far from the clarity lucidity and accuracy required of a brief which should also be easy to read, and easy to comprehend. Alas, not so is the Appellant’s brief. It is hoped that the learned counsel will take the heed and guard against future occurrence.
Having said this, I now turn to the learned counsel’s submission on reliance placed on the evidence of PWs 1, & 3 who are minors and PW4 who is the father of the deceased.
At page 30 of the record the learned trial Judge acknowledged the fact that the evidence of PW1 & PW3 who are minors needed some corroboration. The learned trial Judge then referred to evidence of PW2 (not a minor) and that of PW4 whose testimonies the Judge said he believed. PW2, the trial Judge stated, testified how she held the deceased and PW1 when the former was running after the latter and separated them, and later she went to the scene and met the deceased laying down water poured on him.
That PW4 testified he met the deceased and picked him and rushed him to a dispensary before proceeding to the Hadejia General Hospital where the deceased died.
The trial Judge referred to some cases on corroborative evidence and then found that the evidence of PW2 and PW4 had provided the required corroboration as each of them gave independent account of what had happened, and held that the evidence of PW1 & PW3 had been corroborated. (See pages 31 – 32 of the record).
As to whether any probative value ought to be accorded the evidence of PW4 on account of his being the father of the deceased, the answer has long been judicially provided. It is settled law that the mere fact, that a witness is a relation of a victim of an offence does not render his evidence in Court unreliable or tainted unless it is shown that he has any interest or purpose of his own to serve as such a witness. See Yahaya v. State (2005) 1 NCC 12, BEN v. State (2006) All FWLR (Pt. 292) 168.
What is important is the credibility of such a witness. Therefore a case will not be lost only on the ground that the witnesses are members of the same family or community with the deceased. See Nkebisi v. State (2010) 5 NWLR (Pt. 1188) 471 SC.
In the instant case, the evidence of PW4, relates to what he saw and the role he played after the injuries had been inflicted on the deceased when he was informed of the incident and went to the scene where he saw the deceased laying down with the injuries as described. That evidence was also given by PW2 who was not a minor and not shown to be a relation of the deceased.
There was nothing shown by the Appellant to warrant making the evidence of PW4 unreliable or be treated as a tainted witness.
I therefore hold that the trial Judge did no wrong in accepting and relying on the evidence of PW4 and PW1 (a minor and brother of the deceased) because their evidence was duly evaluated by the trial Judge.
The last complaint of the Appellant against the judgment of the Court, which is that the trial Judge failed to consider the defence of provocation will be determined after considering the 2nd & 3rd ingredients of the offence.
The 2nd ingredient is that the death of the deceased was caused by the Appellant. This can be proved by any of the following 3 ways:
(1) Confessional statement
(2) Circumstantial evidence; or
(3) Evidence of eye witness.
See Ojo v. FRN (2008) 11 NWLR (Pt. 1099) 467 at 513 paras F – G.
What the Respondent’s/prosecutor relies upon in this case are the confessional statement of the Appellant’s exhibit I and the eye witness evidence of PW1.
A voluntary direct and positive confessional statement of an accused person has been described as the strongest and the best of the 3 methods of proving the guilt of an accused person because it comes from the accused himself who knows what he did and says it either in his extrajudicial statement or in Court. There can be no better evidence than that evidence and it takes precedence over eye witness evidence. See Adio v. State (1986) 2 NWLR (Pt. 24) 581, 593, Akpa v. State (2000) 14 NWLR (Pt. 1106) 72, 95 C – D.
In exhibit I, the confessional statement of accused, admitted without objection and relied upon by the Appellant’s counsel, the Appellant had stated that he hit the deceased with a stick on the head 3 times. He stated inter alia:
“On Saturday the 28/7/07 Muhammad Hamza died and I was the only one that beat him…… and the stick brought by the police was the one I used in beating the deceased.”
The voluntariness of Exhibit I was not challenged. The Appellant’s counsel only contends that the Appellant did so in provocation.
In addition to exhibit I, is the evidence of PW1 who was an eye witness to the incident. The evidence of PW1 was properly evaluated by the learned trial Judge who also found corroboration for same in Exhibit I and the evidence of PW2. It would therefore be flying in the teeth of evidence to hold that Exhibits I and 2 and the evidence of PWs 1, and 2 did not prove that the Appellant caused the death of the deceased. I therefore agree with the finding and conclusion arrived at by the trial Judge upon the evidence before him, that the Appellant caused the death of the deceased, thus, the prosecutor/Respondent’s proved the 2nd ingredient.
The 3rd ingredient is that the Appellant knew or had reason to know that death would be the probable and not only likely consequence of the bodily injury he caused to the deceased. That is to say that the Appellant knew or had reason to know that death was the natural or normal effect of the nature of the injury he inflicted on the deceased.
The Appellant according to his statement exhibit I used a stick to hit the head of the deceased 3 times. PWs 1, 2, and 3 saw the nature of injuries sustained by the deceased. The skull of the deceased was broken emitting the brain matter, his stomach busted exposing his duodenum. Any reasonable man would have known that death would be the normal or natural consequence of hitting a person on his head 3 times in the manner and with such stick as exhibit 4. The medical report put the cause of death as severe head injury 2nd degree to trauma. This is consistent with the evidence of PWs 1, 2, 3 as to the head injury inflicted on the deceased. The confessional statement of the Appellant admitting that he beat (hit) the deceased on the head 3 times, is also consistent with the findings on exhibit 2. This last ingredient of the offence was also proved by the Respondent beyond reasonable doubt.

The last complaint of the learned Appellant’s counsel which is the gravamen of this appeal is that the learned trial Judge failed to consider the Appellant’s defence of provocation raised in his extra judicial statement to the police, exhibit I. The learned counsel for the Appellant contended that the learned trial Judge only confined himself to the evidence of PW1 and the confessional statement of the Appellant without investigating the cause of the fight as stated by the Appellant in his statement (Exhibit I). The cause of the fight, as contained in exhibit A, counsel contended, was the mixing up by PW1 of his goats with those of the Appellant and when requested by the Appellant to separate his goats, PW1 refused and fighting ensued which led to the death of the deceased. It is the submission of the Appellant’s counsel that the Appellant was provoked by the refusal of PW1 and the deceased to separate his goats from those of the Appellants and that the defence of provocation raised by the Appellant at the earliest opportunity ought to have been investigated. He placed heavy reliance on the Supreme Court decision in Lado v. State (supra) from where he quoted extensively the decision of the Court particularly where the Supreme Court held, thus:

“Once there is evidence of provocation either from the prosecution or from the defence, the onus is on the prosecution to prove the absence of such provocation….”

Counsel submitted that the claim of provocation raised by the Appellant in exhibit I was not investigated neither did the trial Judge consider same.
In response, the learned Respondent’s counsel contended that not only is the 1999 case of Lado v. State distinguishable from this case by their facts, but also that the Supreme Court has held in the cases of Kaza v. State (2008) 7 NWLR (Pt. 1085) 125 at 193 C – D, and Yaro v. State (2007) 18 NWLR (Pt. 1066) 215 both of which, as in this case, the accused person did not testify, that the burden of prove of the provocation alleged, was squarely placed on the shoulders of the accused person, and which burden the accused persons in those two cases as in this case, did not discharge.
To determine whether the trial Court properly or at all considered the defence of provocation, recourse must be had not only to the judgment of that Court but also to the record of proceedings of the case now before this Court.
From the records of the lower Court including the judgment of the lower Court, it is obvious that the defence relied upon by the Appellant at the lower Court is that of self defence. The Appellants final written address before the lower Court contained at pages 47 – 54 particularly at pages 52 – 54, as well as the Respondent’s final address in reply contained at pages 55 – 62, particularly pages 60 – 61 canvass the defence of self-defence and not that of provocation. Of course, even at the lower Court, the Respondent’s counsel contended that the said defence could not be raised for the first time at the address stage as the Appellant did. He placed reliance on the Supreme Court decision in Ibikunle v. State (2007) 9 QCCR 30 SC at 38 Ratio 9.
As to whether the trial Judge considered the defence of self-defence raised before him, pages 42 – 43 of the record provides, the answer.
In reviewing the evidence before him and considering the addresses of both counsel, the trial Judge at pages 42 – 43 of the record said:-
“In the case at hand the accused raised the defence of self defence while making his extra judicial statement but there is no evidence before me showing that, it was the deceased who first attack the accused person that would entitle him to retaliate and even if there is the accused could be said to have used more force than necessary since there is no evidence to prove that, the life of the accused was in danger at that time that would make him to act the way he did in order to preserve it. The defence in this nexus draw the attention of this Court to the nature of the stick used and stated that, it would not inflict the injuries said to have been inflicted. I beg to disagree with this contention for the fact that it is not the nature of the stick that determine the injuries inflicted but the force used and on which part of the body it was used.”
The learned trial Judge thereby properly considered and dismissed the defence of self defence that was raised before him.
Furthermore, although the defence of provocation was not specifically raised by the learned Appellant’s counsel at the lower Court, the trial Judge considered the availability of the defence to the accused/Appellant.
After the trial Judge considered and dismissed the defence of self-defence at pages 39 – 43, he proceeded at page 44 – 45 to consider whether there was any other defence available to the Appellant in his words, “to render the killing justifiable homicide or to reduce the offence to that of culpable homicide not punishable with death.” The Judge then considered the defence of provocation, compared the evidence of PW1 & Appellants statement to police and also held that it did not avail the Appellant.

Now, to consider whether the defence of provocation avails the Appellant, it should be noted that the only evidence relied upon by the Appellant is his extra-judicial statement to the police admitted as Exhibit I.
The Appellant did not testify. The learned trial Judge took pains to reproduce the contents of exhibit I at pages 38 – 39 of the record.
To properly appreciate the evidence I shall also take the pains to reproduce same. It states thus:-
“I went out with our goats for rearing. There I met Kasimu with his animal also for rearing. His own mixed up with mine. I tell him to separate his own from mine but he refused. From there he abused my mother. I then separated my own and we all went for different places. The following day being Friday the 27/7/2007 at about 10.00am, I went out for normal rearing I saw Kasimu and his Senior brother Muhammad Hamza, he called me and I went there. He asked me why should I abuse his junior brother, I told him that I did not abuse him. From there he Muhammad Hamza hit me with his sticks 3 times. One on my chest and twice on my elbow all at the left side. From there I pursued them and hit Muhammad Hamza on his head 3 times and also hit his junior brother Kasimu twice. The time that the fight took place Yusuf Sale who was arrested together with me was not there and don’t even know we fought. On Saturday the 25/7/2007 Muhammad Hamza died and I was the only one that beat him. During the fight there was one person called Dantuma Babannan and the stick brought by the police was the one I used in beating the deceased.”
As reproduced above, the Appellants claim is that a day before Friday 27th July, 2007 the goats of PW1 got mixed up with the Appellant’s goats and when Appellant told PW1 to separate his goats from his (Appellants) PW1 did not only refuse to do so but also abused the Appellant’s mother.
This, according to the learned Appellant’s counsel, was what led to the fight in which the deceased died.
As rightly submitted by the Respondent’s counsel this event which happened between the Appellant and PW1 a day before the deceased was killed cannot be relied upon as provocation for killing the deceased who did not offer the provocation, but his brother, PW1. Provocation offered by one person cannot be a ground for killing another person who did not offer the provocation. See Idemudia v. State (1999) 7 NWLR (Pt. 670) 202 at 218 D – E.
It is settled law that the provocative act or incidence that can be relied upon and be of assistance to the Appellant, must be that which emanates from the deceased to the Appellant and which sufficiently meets the requirements of the law. It then means, contrary to the learned Appellant’s counsel’s submission that the events preceding the 27/07/2007 can not be relied upon to support a plea of provocation.
The Appellant however, stated the events of 27/7/2007 in Exhibit I that when he went out on Friday for his normal rearing and saw the deceased and his brother Kasimu (PW1), it was the deceased who called upon him and asked why the Appellant abused PW1. Appellant denied abusing PW1, wherefrom the deceased (Muhammed Hamza) hit him (Appellant) 3 times with his stick, once on the chest and twice on his elbow. Then the Appellant pursued the deceased and PW1. Appellant then hit the deceased on his head 3 times. He also hit PW1 twice.
The question is whether those facts as stated in exhibit I constitute or amount to provocation.
In law, provocation consists of 3 essential un-detachable elements which must flow from each other and must all co-exist together, to constitute provocation. These are:
(1) the act of provocation, which must be grave and sudden.
(2) the loss of self-control, both actual and reasonable and
(3) the retaliation proportionate to the provocation.
See EDOHO v. STATE (2010) 14 NWLR (Pt. 1214) 651,
OLATOKUNBO OLADIRAN v. THE STATE (1986) NWLR (Pt. 14) 75.
The relationship of these three elements particularly in point of time, whether there was time for passion to cool, is of the 1st importance. Thus, provocative incident, which is just one of the 3 elements, does not on its own alone amount to provocation. To amount to, provocation, the provocative incident must be such as is sufficient to cause a reasonable man and which actually caused the accused to lose his self-control, and upon which he retaliated which, retaliatory act must be proportionate to the provocation. The retaliation must also occur at a time that the provoked person has not had time for his passion to cool. Once there has been an interval of time between the provocative incident, the loss of actual or reasonable self control and the time of retaliation when the heat of the passion would have subsided, the retaliatory act cannot be said to be contemporaneous with the provocative incident, and the defence will not avail the person seeking to rely on it. See Lado v. State (supra), Ekpenyong v. State (1991) 6 NWLR (Pt. 200) 683 at 698, Oladiran v. State (1986) NWLR (Pt. 14) 75.
Following the decisions of the Supreme Court, this Court in Nwokearu v. State (2010) All FWLR (Pt. 542) 1659 at 1688 paras A-D set out the conditions for successful plea of defence of provocation, viz:-
(a) That the act relied on by the accused was obviously provocative.
(b) That the provocative act deprived the accused of self-control.
(c) That the provocative act came from the deceased.
(d) That the sudden fight between the accused and the deceased was instantaneous and continuous with no time for passion to cool down;
(e) That the force used by the accused in repelling the provocation was not disproportionate in the circumstance.
In the instant case, by exhibit I, the Appellant claimed that it was the deceased who hit him 3 times with a stick, once on his chest and two times on his elbow. He pursued the deceased and PW1 and also hit the deceased with a stick 3 times on his head and PW1 two times.
This was the statement of the Appellant to the police which the Appellant had a duty to prove. The Appellant had the duty to support that claim by positive and credible evidence. In Yaro v. State (supra) the Supreme Court held that where the accused fails to adduce evidence in support of his defence, the trial Court has to rely on the evidence before it adduced by the prosecution.
The Appellant in this case neither testified nor called any witness to support his claim in exhibit I. The trial Court was entitled to rely on the evidence adduced by the prosecution. Here the evidence of PW1 & 2 is most relevant.
PW2 was thrashing her millet when she saw the Appellant running after the PW1. She heard Appellant say he would kill the PW1. She held both of them and each went his separate way. Thereafter, she heard a cry in the nearby bush and when she went there, she saw the deceased laying down with the head broken, his brain out, stomach burst and other injuries. PW1 said that they were sitting together with the deceased when the Appellant and another person came and started beating the deceased and himself with a stick. That the head (skull) of the deceased was broken and the brain matter came out.
Neither PW1 nor PW2 were challenged in cross-examination on this evidence. This evidence of PW2 that she saw the Appellant running after the PW1 and held them, and after sometime, they all went their separate ways was not shaken. PW1 was not challenged on the evidence that it was the Appellant who started beating them when they are sitting down. Apart from the evidence of PW1 who was an eye witness, there was no contrary evidence offered by the defence to show that it was the deceased who was the aggressor and the first to hit the Appellant.
Assuming there was any provocation offered by the deceased to the Appellant, by the time that the Appellant pursued the deceased to where the deceased was sitting down together with PW1, his brother, the heat of the passion would have subsided for the Appellant to have regained the loss of control such that the retaliatory hitting of the deceased by the Appellant at that time was no longer instantaneous with the provocative incident even if offered by the deceased. The time lag ought naturally to have allowed the Appellant’s passion to cool and enable him to regain the control and be the master of his passion.
The Appellant stated in exhibit I that the deceased hit him with stick once on his chest and two times at his elbow. In retaliation, the Appellant went for the head of the deceased and according to him, hit the deceased 3 times on his head.
PWs 1, 2, 3 who saw the deceased described the nature of injuries sustained, that the skull was broken with the brain matter coming out, etc. The extent of the injuries inflicted on the deceased are only consistent with the facts that the force used by the Appellant was disproportionate to the provocative incident alleged.
As it is in the scriptures, it is in our Law that an act of retaliation should be commensurate with what is being retaliated. It is said in the scriptures that it should be “an eye for an eye” or “a tooth for a tooth” and not two eyes for an eye or two teeth for a tooth.
The hitting of the deceased by the Appellant 3 times with a stick on the head according to the Appellant in exhibit I, cannot be proportionate to the alleged hitting of the Appellant by the deceased once on the chest and twice on the elbow.
The nature of the injuries sustained by the deceased as supported by the evidence of PW1, PW2 and PW3 and the medical report (exhibit I) unequivocally support the fact, that the force used by the Appellant was disproportionate to the alleged provocation offered by the deceased if any. See Okonji v. State (1987) NWLR (Pt. 52) 659.
Unlike in the case of Lado v. State (supra) relied upon by the Appellant’s counsel, where the Appellant therein, Lado, testified in his defence, the Appellant in this appeal did not testify to tell his own story under oath and be subjected to cross-examination. There was no evidence offered in Court by the Appellant to the effect that it was the deceased and not himself who was the aggressor.
The learned trial Judge held and rightly so in my view that there was no evidence placed before him that it was the deceased who first hit the Appellant.
I entirely agree with that finding and the basis for it by the learned trial Judge. I also agree with the finding by the learned trial Judge that the Appellant was not provoked and the retaliation by the Appellant was disproportionate to the provocation, if at all, offered by the deceased. I therefore hold that the defence of provocation upon which the appeal is mainly predicated does not avail the Appellant.
The Judge was also right when he held that the defence of provocation did not avail the Appellant. I therefore resolve this issue No. I in the affirmative in favour of the Respondent’s.
This leads to the 2nd issue formulated, viz:
“Whether the learned trial Judge was right when he sentenced the Appellant, a minor between 11 and 12 years old to death upon conviction for culpable homicide.”
In support of his notice of contention to vary the sentence passed by the lower Court on the Appellants, the Respondent’s counsel submitted that the Appellant who was only 11 (eleven) years old as at 1st August 2007, barely 5 days after the commission of the offence and 12 years when sentenced, ought not by Section 270 of the Jigawa State Criminal Procedure Code (C.P.C.) to have been sentenced to death but to a detention during Governor’s pleasure. He submitted that the trial Judge committed a grave error to have sentenced the Appellant to death.
Now, Section 270 Jigawa State C.P.C. provides:

“No sentence of death shall be imposed on a person who is under seventeen years of age or on pregnant women.”

The Appellant who stated in exhibit I as admitted by the Respondent’s that he was 11 years old at the time of the commission of the offence and 12 years old when convicted and sentenced, was by virtue of the said Section 270 not supposed to have been sentenced to death by hanging. What the trial Judge ought to have done in compliance with Section 272 of the said Jigawa State Criminal Procedure Code, was to have ordered the detention of the Appellant at the Governor’s pleasure.
I therefore set aside the sentence of death by hanging passed on the Appellant by the trial Judge. In its place, I order that the Appellant be detained, during the Governor’s pleasure.
On the whole, this appeal lacks merit and is hereby dismissed. However, the Respondent’s notice succeeds and is hereby allowed. The Appellant is ordered to be detained at the pleasure of the Governor.

ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Amina Audi Wambai, JCA afforded me the opportunity of reading in draft from the judgment just delivered. My learned brother has comprehensively considered and determined the issues in the appeal and I adopt the reasoning and conclusion therein as mine. Consequently I agree that the appeal has no substance or merit and it is dismissed while the Respondent’s notice succeeds and same is allowed.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read the judgment of my learned brother, Amina Audi Wambai, JCA. I am in agreement that the appeal of the Appellant lacks merit and dismiss the same.
The Respondent’s Notice seeking a variation of the sentence from a sentence of death by hanging to detention at the Governor’s pleasure, the Appellant being under 17 years of age, succeeds.
Section 270 of the Criminal Procedure Code Cap 39 Laws of Jigawa State of Nigeria 1998 stipulates that:

“No sentence of death shall be imposed on a person who is under seventeen years of age or on pregnant women.”

By Section 272 of the Criminal Procedure Code (supra) such convict shall be detained at the Governor’s pleasure.
The Appellant is accordingly ordered to be detained at the pleasure of the Governor of Jigawa State.

Appearances

N. A. Dangiri Esq.For Appellant

AND

Suleh Umar (D.P.P.) Jigawa StateFor Respondent