(2018) lpelr-46747(ca)lawpavilionpersonal.com/ipad/books/46747.pdf · 2019-06-26 · suit no:...

UBA v. STATE

CITATION: (2018) LPELR-46747(CA)

In the Court of AppealIn the Kaduna Judicial Division

Holden at Kaduna

ON WEDNESDAY, 23RD MAY, 2018Suit No: CA/K/335/C/2017

Before Their Lordships:

ZAINAB ADAMU BULKACHUWA Justice, Court of AppealOLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice, Court of AppealAMINA AUDI WAMBAI Justice, Court of Appeal

BetweenSULAIMAN UBA - Appellant(s)

AndTHE STATE - Respondent(s)

RATIO DECIDENDI

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1. APPEAL - FORMULATION OF ISSUE(S) FOR DETERMINATION: Whether a respondent whofiles neither a cross appeal nor respondent's notice can formulate issues for determination notrelated to the grounds of appeal filed"Surely, a Respondent is at liberty to formulate issues in an appeal but such issues must betraceable to the grounds of appeal. They must originate from the complaints in the grounds ofappeal and must not be at variance with or extraneous to the grounds of appeal.A Respondent who wishes to formulate issues different from those raised by the Appellant mustconfine himself to the complaints raised by the grounds of appeal. He cannot veer off from butmust remain within the compass of the grounds of appeal. To formulate an issue outside or atcross roads with the grounds of appeal, the Respondent must utilize one of the two viable options,either to file a cross appeal or a Respondents Notice of intention to contend, to be able toventilate the fresh or strange issue. See MUSA VS THE STATE(2014) 25 WRN 101 ANYALENKEYAVS ANYA & ORS(2016); ZANGO VS DANTATA LPELR 40218 (CA); OKECHUKWU VS INEC (2014) 17NWLR (PT. 1436) 255.It follows that any issue formulated outside the grounds of appeal is incompetent and liable to bestruck out together with the argument canvassed in support. SeeJATAU VS AHMED (2003) 4 NWLR(PT. 811) 4418; IKE VS OTUO (2010) 16 FWLR (PT. 238) 58; ODEH VS FRN (Supra). See also thecase of JAMES VS INEC (2015) 12 NWLR (PT. 1474) 538 cited by the Appellant's Counsel."PerWAMBAI, J.C.A. (Pp. 4-5, Paras. D-D) - read in context

2. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITHDEATH: Ingredients the prosecution must prove to establish the offence of culpable homicidepunishable with death"The ingredients of culpable homicide punishable with deathwhich the prosecution must prove to succeed have been stated times without number to be: viz (i)that the death of a human being took place; (ii) that such death was caused by the accused; (iii)that the act of the accused caused the death with the intention of causing death or that theaccused knew that death would be the probable consequence of his act. SeeMAIYAKI VS THESTATE (2008) 15 NWLR (PT. 1109) 173; MAMMAN VS THE STATE (2015) LPELR 25963 (CA); UBA VSTHE STATE (2003) 18 NWLR (PT. 851) 24."Per WAMBAI, J.C.A. (P. 14, Paras. C-E) - read incontext

3. CRIMINAL LAW AND PROCEDURE - GUILT OF AN ACCUSED PERSON: How to establish/provethe guilt of an accused person"The guilt of an accused person it has been established, may be proved either by the confessionalstatement of the accused; by circumstantial evidence; or the evidence of eye witness account ofthe commission of the crime. See IGABELE VS THE STATE (2006) 6 NWLR (PART 975) 100;ADEKOYA VS THE STATE (2012) VOL. 3 M JSC (PART 11) 77; NIG. NAVY & 2 ORS VS LT.COMMANDER S. A. IBE LAMBERT (2007) ALL FWLR (PART 398) 574, AT 586."Per WAMBAI, J.C.A.(Pp. 14-15, Paras. F-B) - read in context

4. CRIMINAL LAW AND PROCEDURE - INTENTION: How intention can be inferred"A man's intention is usually very different if not impossible toprove, for even the devil as crafty as it is, has not been able to know or read a man's intention. Aman's intention, invariably can only be inferred from his conduct and surrounding circumstancewithin which he acts. It is from the manifestation of his conduct that his intention can beascertained. This statement has the backing of a litany of judicial decisions. See for exampleAREBAMEN VS THE STATE (1972) 7 NSCC 194, 200 where the Supreme Court held: "Intention is ofcourse difficult to prove affirmatively without a confession from the accused and can frequentlyonly be determined by looking at all the surrounding circumstances and deciding therefromwhether the natural inference is that such must have been the intention. A material factor mustbe the action or conduct of the accused." In KOLO VS COMMISSIONER OF POLICE (2017) LPELR42577 (SC) Ogunbiyi JSC on how to infer intention had this to say, inter alia: "... It is often said thateven the devil does not know the state of a person's mind as it is the state of his heart completelywithin his own Knowledge to the exclusion of all else ... An intention that you have is an idea orplan of what you are going to do. The word intention being subjected in nature therefore can beinferred from the conduct of a person by manifesting through his action." The law thereforepresumes that a man intends the natural and probable consequence of his act and is deemed toknow the natural consequence of his action. See GARBA & ORS VS THE STATE (2000) 6 NWLR(PT. 661) 379; STATE VS JOHN (2013) LPELR - 20590 (SC). This is founded on the maxim that theguilty mind instigates the guilty act or flows into the guilty act. The act of a person is proof of hismens rea."Per WAMBAI, J.C.A. (Pp. 23-25, Paras. E-B) - read in context

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5. CRIMINAL LAW AND PROCEDURE - DEFENCE OF SELF-DEFENCE: Nature of the plea of self-defence; conditions that must be established for a successful plea of self defence"Now a successful plea of defence of self-defence is a completedefence which exonerates or exculpates the accused person from criminal responsibility asprovided by Section 33(2) of the 1999 Constitution (as amended) to wit: "A person shall not beregarded as having been deprived of his life in contravention of this Section, if he dies as a resultof the use, to such and in such circumstances as are permitted by law, of such force as isreasonably necessary (a) For the defence of any person from unlawful violence or for the defenceof property." This provision is given effect to in our Penal and Criminal Codes. In Section 59 of thePenal Code, nothing is an offence which is done in the lawful exercise of the right of privatedefence. Section 60 specifically grants to every person, subject to the restrictions imposedtherein, the right to defend his own body or the body of another person as well as his property andthe property of another. Section 62 limits the right. The right does not extend to the inflicting ofmore harm than is necessary to inflict for the purpose of the defence. Herein lies the crucialquestion. This is not all, to justify the taking of another person's life in the name of self-defence,Section 222 (2) Penal Code provides that the right must be exercised in good faith; it must havebeen without a premeditation and it must be without any intention of doing more harm than isnecessary for the purpose of the defence. Implicit in this are the necessary pre-conditions uponwhich the defence is predicated. They are (1) the necessity of the use of force and (2) thereasonableness or proportion of the force used in defence. In ADEYEYE VS THE STATE (2013) 11NWLR (PT. 1364) 47 Ogunbiyi JSC held: "The two questions, which ought to be posed andtherefore, answered before the trial Court, were:- (1) on the evidence, was the defence of selfdefence necessary (2) was the injury inflicted proportionate to the threat offered, or was itexcessive? If however, the threat altered is disproportionate with the force used in repelling it, andthe necessity of the occasion did not demand such self defence, then the defence cannot avail theAccused." Thus, the conditions upon which the plea can avail an accused person have been setout in a plethora of judicial decisions. These are: a. the accused must be free from fault in bringingabout the encounter; b. there must be present an impending peril to life or of great bodily harmeither real or so apparent as to create honest belief of an existing necessity; c. there must be nosafe or reasonable mode of escape by retreat; and d. there must have been a necessity for takinglife. See the case of OMOREGIE VS THE STATE (2008) 18 NWLR (PT. 1119) P. 464 AT 482 - 483PARAG H - C, and KWAGHSHIR V THE STATE (1995) 3 NWLR (PT. 386) 651. In the instant case, theAppellant stated that he was wading off the beating with his hands before he got to where his ownstick was, got hold of it and then turned back to hit the deceased. Though the Appellant mighthave had reasonable apprehension of grevious body hurt to himself from the deceased's beating,his action of getting hold of his stick and turning back to hit the deceased instead of running awayand escaping from the beating which he said he was already wading off with his hands,disqualifies him from the availability of the self-defence. It cannot be said that there was no safeor reasonable mode of escape by retreat. In MUHAMMAD VS THE STATE (2017) LPELR 42098 (SC)Augie JSC who read the lead judgment in rejecting the plea of self-defence raised therein quotedin approval the Court's earlier decision in OWHORUKE VS C.O.P. (supra), where the deceasedsnatched a bottle of drink from the Appellant and broke it. He then threatened the Appellant withthe broken bottle. The Appellant confessed that he later overpowered the deceased; seized thebroken bottle from the deceased, and then used it to stab the deceased in the neck. The issue waswhether the Appellant was in apprehension of death or grievous bodily harm at the time. TheCourt held that - the Appellant was no longer in apprehension of death or grievous bodily harmsince he stabbed the deceased after he had overpowered him and retrieved the broken bottlefrom him. Similarly, in the case at hand the Appellant having turned back to hit the deceasedwhen he got hold of his stick instead of retreating, the learned trial Judge, also rightly rejected theAppellant's plea of self-defence."Per WAMBAI, J.C.A. (Pp. 27-31, Paras. B-A) - read incontext

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6. CRIMINAL LAW AND PROCEDURE - DEFENCE OF PROVOCATION: Effect of the defence ofprovocation"For the defence of provocation unlike the defence of self-defenceit does not exculpate the accused, it only mitigates the punishment. Section 222(4) of the PenalCode provides: (4) Culpable homicide is not punishable with death if it is committed withoutpremeditation in a sudden fight in the heat of passion upon a sudden quarrel and without theoffender's having taken undue advantage or acted in a cruel or unusual manner. In theexplanation to the Section, it is provided that it is immaterial in such cases which party firstprovokes the other or commits the first assault. The learned trial Judge rightly invoked thisprovision to convict the Appellant for culpable homicide not punishable with death as a result ofthe fighting. He did the right thing. Having found the Appellant not guilty of the offence of culpablehomicide punishable with death with which the Appellant was charged, the learned trial Judgerightly on the evidence on record, convicted the Appellant for the lesser offence of culpablehomicide not punishable with death."Per WAMBAI, J.C.A. (P. 31, Paras. A-G) - read incontext

7. CRIMINAL LAW AND PROCEDURE - SENTENCING: Whether an Appellate Court can reduce orincrease the sentence imposed by the trial Court"In the Appellant's 1st issue, he has challenged the sentenceimposed by the trial Court. I have given a due consideration to the facts of this case and considerthe 25 years term of imprisonment rather too severe. Accordingly, in exercise of the powersvested in this Court by Section 19(3) of the Court of Appeal Act, 2004, to reduce or increasesentence imposed by the trial Court in appropriate cases where the interest of justice would bebetter served. See ODEH VS FEDERAL REPUBLIC OF NIGERIA (2008) 13 NWLR (PT. 1103) 1 perMusdapher JSC (as he then was), and in consideration of the extenuating factors in this appeal, theAppellant being a young man of 25 years and a first offender; the death of the deceased havingresulted from a fight in which the Appellant also sustained fractures, I reduce the 25 yearssentence which is considered too severe in the circumstances of this case, to 10 yearsimprisonment commencing from the date of his conviction at the trial Court. See ANASTATUSUWAKWE VS THE STATE (1974) LPELR - 3447 (SC)."Per WAMBAI, J.C.A. (P. 32, Paras. A-G)- read in context

8. CRIMINAL LAW AND PROCEDURE - CONVICTION FOR LESSER OFFENCE: Whether anaccused person charged with the offence of culpable homicide punishable with death can beconvicted of a lesser offence"I am in agreement with my learned brother, that the trial Judge having found the Appellant notguilty of the offence of culpable homicide punishable with death rightly convicted him for thelesser offence of culpable homicide not punishable with death, pursuant to Section 222 (4) of thePenal Code and I affirm this conviction accordingly."Per ADEFOPE-OKOJIE, J.C.A. (P. 33, Paras. E-G)- read in context

9. EVIDENCE - CONFESSIONAL STATEMENT: Whether confession is the best form of evidence in acriminal trial; whether it is sufficient alone to sustain a conviction"The utilitarian value of a confessional statement of an accusedperson in a criminal trial cannot be over emphasized. It's eminence in evidencial value and itsprime place derives from the fact that there is no stronger evidence than a man's own admissionor confession. It is considered as the best evidence which the Court can rely upon to convict. It istherefore no longer debatable that a man may be convicted on his confessional statement alonewhich is voluntary, free, positive, so long as the Court is satisfied of its truth. Such a confessionwould constitute proof of guilt of the maker and suffices as evidence upon which to ground orsustain his conviction. See IDOWU VS THE STATE (2007) 9 NWLR (PT. 1038) 30; OZANA UBIERHOVS THE STATE (2005) 4 NWLR (PT. 919) 644 AT 655. After all a confession being an admissionmade at any time by a person charged with a crime stating or suggesting the inference that hecommitted the offence, it is good law that it is the best evidence in criminal trial that the accusedcommitted the offence with which he is charged, so long it satisfies the requirement of the law.See IKPO VS THE STATE (2016) LPELR 40114 (SC); ADEKOYA VS THE STATE (2012) 9 NWLR (PT.1306) 539; ASIMI VS THE STATE (2016) LPELR - 40436 (SC). This is so because who else knows itbetter and can say it better than the accused who hatched and executed the crime? This is why inADEBAYO VS ATTORNEY GENERAL OGUN STATE (2008) 3 NCC 305 AT 308 Tobi JSC stated thus:"Confession is the best evidence in criminal law. In it, the accused admits that he has committedthe offence for which he is charged. For this purpose, the accused is the figural horses mouth.There cannot be better evidence."Per WAMBAI, J.C.A. (Pp. 20-21, Paras. C-E) - read incontext

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10. PRACTICE AND PROCEDURE - PRELIMINARY OBJECTION: Whether a preliminary objectionshould be considered and determined first before dealing with the merits of an appeal"The learned Appellant's Counsel has challenged the competenceof the Respondent's 1st issue. I should attend to this challenge first before settling on the issuesfor determination, so as not to labour in vain. It has now become established law that where theRespondent raises a Preliminary Objection and argues it in his brief of argument, the objectionmust be considered first before taking any further step in the appeal. See ADETORO VS OGOOLUWA TRADING CO. LTD (2002) NWLR (PT. 771) 157; N.N.B. PLC VS IMONIKE (2002) 5 NWLR (PT.760) 294."Per WAMBAI, J.C.A. (P. 3, Paras. A-D) - read in context

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AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading

Judgment): This appeal before us emanated from the

judgement of Hon. Justice A.M. Abubakar of the Jigawa

State High Court in charge JDU/106C/2016 delivered on

the 22/02/2017 which convicted the Appellant for the

offence of culpable homicide not punishable with death

under Section 224 of the Penal Code and sentenced him to

25 years imprisonment.

The Appellant was alleged on the charge sheet to have on

or about the 25th day of December 2015, at Nasara, Birnin

Kudu Local Government of Jigawa State, caused the death

of Ibrahim Ali (the deceased) by hitting him with a stick on

his head with the knowledge that death would be the

probable consequence of his action, an offence punishable

with death under Section 221 (b) of the Jigawa State Penal

Code Law CAP P3 2012 as amended.

The Appellant pleaded not guilty. The prosecution called six

witnesses and tendered 4 Exhibits. The Appellant testified

in his defence and called 5 other witnesses. Upon the

review of the evidence, the learned trial Judge found that

the prosecution proved all the ingredients of the offence

beyond reasonable doubt

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against the Appellant but in consideration of the fight

between the deceased and the Appellant, convicted the

Appellant for the offence of culpable homicide not

punishable with death and sentenced him to 25 years

imprisonment.

Peeved and disconsolate with his conviction and sentence,

the Appellant filed a notice of appeal attacking the

judgment on 7 grounds from which the learned Appellant’s

Counsel Yakubu A.H. Ruba Esq., in a brief of argument filed

on 27/09/2017, raised 2 issues for determination to wit:

1. Whether there was sufficient evidence adduced at

the trial which warrant the conviction and sentencing

of the Appellant by the lower trial Court, instead of an

outright acquittal and discharge.

2. Whether the defence of self-defence and/or

provocation will avail the Appellant.

Aliyu Abdullahi Esq., the Chief State Counsel, Ministry of

Justice Jigawa State who settled the Respondent’s brief of

argument filed on 16/02/2018, distilled two issues for

determination namely:

i. Whether the prosecution/respondent succeeded in

proving the charge against the Appellant and whether

the learned tr ia l Judge was r ight to have

convicted and sentenced the Appellant for lesser

offence.

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ii. Whether the defence of self-defence and

provocation is available to the Appellant and whether

same will avail him.

The learned Appellant’s Counsel has challenged the

competence of the Respondent’s 1st issue. I should attend

to this challenge first before settling on the issues for

determination, so as not to labour in vain. It has now

become established law that where the Respondent raises a

Preliminary Objection and argues it in his brief of

argument, the objection must be considered first before

taking any further step in the appeal. See ADETORO VS

OGO OLUWA KITAN TRADING CO. LTD (2002) NWLR

(PT. 771) 157; N.N.B. PLC VS IMONIKHE (2002) 5

NWLR (PT. 760) 294.

The ground of the objection is that the Respondent’s first

issue for determination is outside the grounds of appeal

and the Respondent having not filed a cross-appeal,

renders the issue incompetent. It was submitted that the

Respondent can only raise an issue outside the grounds of

appeal if he has filed a cross-appeal. For this he cited the

cases of EMIRATE AIRLINE VS AFORKA (2015) 9

NWLR (PT. 1463) 80 AT 1005 E – G;

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EJURA VS IDRIS (2006) 4 NWLR (PT. 971) 538. It was

submitted that the said issue No. 1 together with the

argument canvassed thereon should be discountenanced,

citing the cases ofODEH VS FRN (2008) 13 NWLR (PT.

1103 ) 1 AT 19 – 20 G - A.

Additionally, learned Counsel contended that assuming

though not conceding that the Respondent could raise the

said issue outside the grounds of appeal, being a fresh

issue, Respondent requires the leave of Court and same

having not been sought and obtained, the issue is rendered

invalid and should be struck out, citing SAKATI VS BAKO

(2015) 14 NWLR (PT. 1480) 531 SC and IBRAHIM VS

LAWAL (2015) 17 NWLR (PT. 1489) 490 SC.

Surely, a Respondent is at liberty to formulate issues in an

appeal but such issues must be traceable to the grounds of

appeal. They must originate from the complaints in the

grounds of appeal and must not be at variance with or

extraneous to the grounds of appeal.

A Respondent who wishes to formulate issues different

from those raised by the Appellant must confine himself to

the complaints raised by the grounds of appeal. He cannot

veer off from but must remain within the compass

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of the grounds of appeal. To formulate an issue outside or

at cross roads with the grounds of appeal, the Respondent

must utilize one of the two viable options, either to file a

cross appeal or a Respondents Notice of intention to

contend, to be able to ventilate the fresh or strange issue.

See MUSA VS THE STATE (2014) 25 WRN 101

ANYALENKEYA VS ANYA & ORS (2016); ZANGO VS

DANTATA LPELR 40218 (CA); OKECHUKWU VS INEC

(2014) 17 NWLR (PT. 1436) 255.

It follows that any issue formulated outside the grounds of

appeal is incompetent and liable to be struck out together

with the argument canvassed in support. SeeJATAU VS

AHMED (2003) 4 NWLR (PT. 811) 4418; IKE VS OTUO

(2010) 16 FWLR (PT. 238) 58; ODEH VS FRN (Supra).

See also the case of JAMES VS INEC (2015) 12 NWLR

(PT. 1474) 538 cited by the Appellant’s Counsel.

I have carefully studied the issues raised by the learned

Respondent’s Counsel particularly the 1st issue which

reads:

Whether the prosecution/respondent succeeded in

proving the charge against the Appellant and whether

the learned trial Judge was right to have convicted

and sentenced the Appellant for lesser offence.

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This issue is similar to the Appellant’s first issue albeit,

with the slant in the Respondent’s favour as couched.

However to the extent that the Respondent’s argument

took the dimension of calling on the Court to reverse the

conviction and sentence from culpable homicide not

punishable with death to that of culpable homicide

punishable with death, I agree with the Appellant’s

submission that the Respondent ought to have filed a

Notice of Cross-appeal. In consequence thereof, the

preliminary objection succeeds and the said Respondent’s

argument to that extent shall be discountenanced in this

appeal. Accordingly, the Respondent’s argument that a

verdict of culpable homicide punishable with death be

returned pursuant to Order 4 Rules 3 and 4 of the Court of

Appeal Rules, 2016 is hereby struck out.

Now, turning to the issues for determination, this appeal

will be determined on a sole issue culled from the

Appellant’s two issues as reframed infra:

Whether there was sufficient evidence adduced at the

trial which warranted the conviction and sentence of

the Appellant to 25 years imprisonment for culpable

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homicide not punishable with death instead of his

outright discharge and acquittal.

It was submitted for the Appellant that to secure the

conviction of the accused in a case of Culpable homicide

punishable with death, the Respondent must prove beyond

reasonable doubt the death of the deceased, that the death

resulted from the act of the accused/appellant, and that the

act of the accused was done intentionally or with the

knowledge that death or grievous bodily harm was its

probable consequence. Reliance was placed on Section 36

(5) of the Constitution FRN 1999 (as amended) and the

cases of ADENIYI ADEKOYA VS STATE (2012) 7 NCC

1; AGBITI VS NIGERIA NAVY (2011) 4 NWLR (1236)

175; ALI VS STATE (2015) 10 NWLR (PT. 1466) 1. He

contended that the Respondent failed to adduce credible

and cogent evidence to prove the stated ingredients of the

offence because the evidence of PW1 and PW2 as found by

the learned trial Judge at page 129 of the record was

hearsay evidence which ought to have been rejected as

held inSUBRAMANIAN VS PUBLIC PROSECUTION

(1956) 1 WLR 965 at 969 and JUDICIAL SERVICE

COMMITTEE VS OMO (1990) 6 NWLR (PT. 157) 407

at 468,

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but ironically in a judicial error, the same Judge relied on

the said evidence of PW2 to convict the Appellant. He

contended that once the evidence of PW2 which goes to no

issue is disregarded, the identity of the person alleged to

have died will certainly be in doubt and the evidence of

PW3 and the Medical report, Exhibit C1, in respect of one

Ibrahim Abubakar who died on 25/09/2015 as against the

name of Ibrahim Ali on the charge sheet alleged to on

25/12/2015, creates another doubt. The discrepancies as to

the identity of the deceased which the evidence of PW2

could not cure and the discrepancy as to the date of the

commission of the offence which the evidence of PW3 could

not cure have created a lot of doubt, which he argued,

should have been resolved in favour of the appellant. The

cases of HASSAN JIMOH VS STATE (2014) 9 NCC 463;

BOLANLE V STATE (2010) 5 NCC 1; AIKHADUEKI VS

STATE (2014) 9 NCC 707 and MAIGANI VS STATE

(2010) 16 NWLR (PT. 1220) 493 were referred.

On the evidence of PW4 and PW6, learned counsel

submitted that mainly relate to the recording of the

Appellant’s extra judicial statement in Exhibits C2 and C3

which though PW4 considered as confessional,

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are not confessional, the Appellant having not therein

positively and directly admitted committing the offence. He

relied on GABRIEL VS STATE (2010) 6 NWLR (PT.

1190) 280 at 321.

PW5 whom the learned trial judge described as an eye

witness, learned Counsel argued, is not an eye witness

having stated that he fell asleep and only woke up by the

noise of the sticks and does not know when the scuffle

started. It was Counsel’s contention that the learned trial

Judge was wrong to have relied on the evidence of PW5

which is full of contradictions, discrepancies and

uncertainties, in convicting the Appellant, citing in support,

the case of EGWEMI VS STATE (2010) 1 FWLR (PT.

515) 2241 cited.

Moreover it was further argued, that considering the time

when the incident took place at about 8:00pm, there was no

credible evidence to show that PW5 had the opportunity of

identifying the Appellant as the perpetrator of the alleged

offence, citing the case ABUDU VS STATE (1985) 1

NWLR (PT. 1) 55.

Learned counsel contended further that assuming but not

conceding that an unidentified person died and the

Appellant committed the offence, from the totality of

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the uncontroverted evidence adduced for the Appellant

particularly that of DW2, there is no doubt that the life of

the appellant was in danger from the deceased ramping act

of violence. The Appellant is thus entitled to the defence of

self-defence and/or provocation, the Respondent having

failed in its duty to establish that the defences are not

available to the Appellant. APUGO VS STATE NCC 2 30

at 53-54; HENRY CHUKWU VS STATE (2014) 9 NCC

101; NJOKWU V STATE (2014) 9 NCC 132 and AFOSI

VS STATE (2014) 9 NCC 550 were relied upon.

We were urged to hold that there was no sufficient credible

evidence adduced at the trial to warrant the Appellant’s

conviction and sentence and to accordingly discharge and

acquit him.

In his response, the learned Respondent’s Counsel

submitting contrarily, contended that the respondent had

at the trial proved all the 3 ingredients of the offence of

culpable Homicide punishable with death in that PW2 on

the 1st ingredient adduced evidence which pointedly

proved the fact that a human being had died, as confirmed

by the testimonies PW3 and Exhibit C1.

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On the second ingredient that death of the deceased

was caused by the act of the Appellant, Counsel argued

that the evidence of PW4 and PW6 through whom the extra

judicial statements of the appellant were tendered as

Exhibits C2, C3 and C4 wherein Appellant admitted hitting

the deceased on the head, proved the fact that it was the

act of the appellant that caused the death of the deceased,

contending that the Appellant’s confession is the best

evidence in criminal trial. On this, he relied on the case of

SABIRU ADEBAYO VS A.G. OGUN STATE (2008) 3

NCC 305 at 308. It was submitted that aside the

Appellant’s confessional statements, PW5 who is an eye

witness, to also testified that he witnessed the attack of the

appellant on the deceased.

On the 3rd ingredient, it was submitted that whoever

attacked a human being on a sensitive part of the body like

the head will definitely know that death will be the

probable consequence of his act. That the intention of

killing the deceased or causing him grievous bodily harm is

deducible from the act of hitting the deceased on the head.

We were urged to hold that the prosecution proved all the

ingredients.

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Responding to the Appellant’s argument on the identity of

the deceased as contained in Exhibit C1, it was contended

that the evidence of PW2 (on record at pages 6 - 7) that the

deceased was known by both names, Ibrahim Ali and

Ibrahim Abubakar resolved any doubt of the identity of the

deceased. The evidence of PW2 it was submitted though

may be hearsay with respect to witnessing the fight that led

to the death of the deceased, it cannot be hearsay in

respect of the name of the deceased.

On the conflicting dates of the commission of the offence as

stated in the charge sheet to be 25th December, 2015, and

on Exhibit C1 to be 25th September, 2015, Counsel argued

that the discrepancy is only an immaterial human error

which is not fatal to the prosecution’s case. Moreover, the

evidence of all the defence witnesses including PW3 that

the incident occurred on 25/09/2015 resolved the

discrepancy. He referred to GALADIMA V STATE

(Supra).

On the plea of self-defence raised by the Appellant, learned

Counsel stated the conditions that must co-exist to sustain

the defence as laid down in the cases of OMOREGIE VS

STATE (2008) 18 NWLR (PT. 1119) 464 at 482 – 483.

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He insisted that the defence of self defence does not avail

the Appellant as he neither showed that he was defending

himself or free from fault or that he could not have escaped

by retreat. For the defence of provocation, Counsel cited

t h e c a s e o f G A L A D I M A V S T H E S T A T E

(SUPRA) wherein the conditions for the sustainability of

the defence were stated and argued that the Appellant did

not show that he was provoked or acted in the heat of

passion. Having failed to establish any of the two defenes,

the lower Court was right in rejecting the defence, since

the defences cannot be at large without supporting

evidence citing the case ofEDOHO VS STATE (2010) 14

NWLR (PT. 1214) 682 – 683 and urging us to dismiss the

appeal.

The offence with which the Appellant was charged is that of

culpable homicide punishable with death. The learned trial

Judge found that the prosecution proved its case beyond

reasonable doubt against the Appellant but in consideration

of the fighting between the two, convicted the Appellant for

culpable homicide not punishable with death having

rejected the Appellant’s plea of self defence and

provocation.

13

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747(

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The contention of the learned Appellant’s Counsel is that

there is no sufficient credible evidence on record in the

first place that proved the commission of the offence to

warrant the Appellant’s conviction and that assuming

without conceding that an identified human being died and

the Appellant committed the offence, the learned trial

Judge was wrong to have rejected his pleas of self defence

and provocation.

What are the ingredients of the offence of culpable

homicide punishable with death?

The ingredients of culpable homicide punishable with death

which the prosecution must prove to succeed have been

stated times without number to be: viz (i) that the death of

a human being took place; (ii) that such death was caused

by the accused; (iii) that the act of the accused caused the

death with the intention of causing death or that the

accused knew that death would be the probable

consequence of his act.

SeeMAIYAKI VS THE STATE (2008) 15 NWLR (PT.

1109) 173; MAMMAN VS THE STATE (2015) LPELR

25963 (CA); UBA VS THE STATE (2003) 18 NWLR

(PT. 851) 24.

The guilt of an accused person it has been established, may

be proved either by the confessional statement of

14

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the accused; by circumstantial evidence; or the evidence of

eye witness account of the commission of the crime. See

IGABELE VS THE STATE (2006) 6 NWLR (PART 975)

100; ADEKOYA VS THE STATE (2012) VOL. 3 M JSC

(PART 11) 77 ; NIG. NAVY & 2 ORS VS LT.

COMMANDER S. A. IBE LAMBERT (2007) ALL FWLR

(PART 398) 574, AT 586.

In the instant case, the trial Court relied on the evidence of

an eye witness, PW5, and of PW2, PW3 and Exhibits C1, C2

and C3 in arriving at its conclusion.

On the first ingredient, there is copious unchallenged

evidence on record that a human being died. The evidence

of PW2, the deceased’s brother, that of PW3, the Medical

Doctor, and Exhibit C1 (the Medical Report) proved that a

human being died. The Appellant’s contention that the

identity of the deceased is uncertain because of the

discrepancy between the name of the deceased Ibrahim Ali,

as contained in the charge sheet as against the name of the

deceased on the Medical Report being Ibrahim Abubakar,

is of no moment having been adequately explained by PW2,

the deceased’s senior brother, that the deceased was

known by the two names.

15

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747(

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Indeed the maxim “nihil facit error nominis cumde

corpore constat, meaning “a mistake as to name has no

effect when there is no mistake as to the person meant” is

very germane and apposite here. If ever a scenario qualifies

for the application of this maxim, I cannot find any better

situation than the one at hand when there is not an atom’s

weight of doubt that both Ibrahim Ali and Ibrahim

Abubakar refer to one and the same person.

Similarly, the discrepancy on the date of the occurrence of

the incident as stated in the charge sheet to be 25/12/2015

as against the 25/09/2015 in Exhibit C1, can only be an

error as argued by the learned Respondent’s Counsel.

Therefore all the heavy dust raised by the learned

Appellant’s Counsel in respect of the discrepancy is only

but a storm in a tea cup as the Appellant both in his

evidence in Court and in the extra judicial statements,

Exhibits C2, C3 and C4 as well as all his witnesses refer to

the 25/09/205 as the date of the incident, which conforms

with the date in Exhibit C1. The Appellant’s evidence as

recorded at P4 of the record is partly:-

16

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“Around 25/09/2015, what I have to say is

that Ibrahim Ali (deceased) was a friend and

brother…”

I therefore discountenance the vehement but empty

argument that the identity of the deceased and the date of

the event are doubtful.

The second ingredient of the offence is that the death of the

deceased was caused by the Appellant or resulted from the

act of the Appellant. The summary of the evidence on

record is that on the fateful day PW5, Alhaji Ya’u Yusuf,

was in the company of the Appellant and the deceased. He

fell asleep but was awakened by the sound of sticks. He

testified further that:

“As I woke up I asked them for the sake of God what

happened and why were they fighting so I rushed to

their direction, but before I got to where they were,

the accused had hit the deceased and the deceased

was already down. So I grabbed the deceased and

sought for help. Later a motorcycle was brought

which I used to convey the deceased to a chemist."

The deceased was later taken to the Federal Medical

Centre where PW3 attended to him, who upon removing

the bandage on the head of the deceased, observed a deep

laceration already sutured at the private Hospital 2

days earlier.

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17

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He made a diagnosis of a mild head injury, secondary to

assault on the head. However, on the second day, the

condition of the deceased deteriorated and died before he

was taken to the Aminu Kano Teaching Hospital for the

planned C.T. Scan of the head. PW3 and Exhibit C1 stated

the cause or diagnosis of death as secondary severe head

injury complicated with cardio respiratory failure.

At the State C.I.D. office, Irmiya Abba, PW4, who was one

of the investigators, recorded the statement of the

Appellant in Hausa language which was translated into

English language. They are Exhibits C2 and C3. Also at the

Bamaina Division, PW6 recorded the Appellant’s statement

in English language, Exhibit C4.

The learned trial Judge at pages 135 - 136 of the record,

found the evidence of PW5 as an eye witness evidence. He

also found that PW5 was a credible witness having not been

discredited. The learned Appellant’s Counsel has picked a

big hole in this finding contending that the evidence of PW5

is merely hearsay evidence and not evidence of an eye

witness because he did not witness the incident having

fallen asleep.

18

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747(

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I disagree with the Counsel that the entire evidence of

PW5, simpliciter, is hearsay evidence. To the extent that his

evidence relates to what he saw when he woke up, his

evidence cannot be tagged hearsay evidence. It is hearsay

only if it relates to what happened between the Appellant

and the deceased before he woke up from sleep. There is

no ambiguity that the evidence of PW5 relates only to what

he saw when he was awakened by the sound of sticks. In

very clear terms he stated that as he woke up he asked

them why they were fighting and rushed to their direction

but before he got to them the accused/Appellant had hit the

deceased and the deceased was already down. This piece of

evidence which the learned trial Judge believed, obviously

cannot wear the toga of hearsay evidence. The witness was

adamant on his direct evidence that he saw the Appellant

beat the deceased and remained fixedly on the same spot in

cross-examination that he saw the beating.

As a matter of fact, the evidence that the Appellant hit the

deceased with a stick does not seem to be much of an issue

of disputation considering the totality of the evidence on

record.

19

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747(

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In Exhibit C3, the Appellant stated inter alia:

“When we started fighting with each other I beat him

with my stick three times and he fell down

unconscious. The Alhaji Ya’u, Dan Dalha came and

separated us."

Significantly, the Alhaji Ya’u, is PW5. Also in Exhibit C4, the

Appellant admitted beating the deceased 3 times in

retaliation to the 6 times beating meted out to him by the

deceased.

The utilitarian value of a confessional statement of an

accused person in a criminal trial cannot be over

emphasized. It’s eminence in evidencial value and its prime

place derives from the fact that there is no stronger

evidence than a man’s own admission or confession. It is

considered as the best evidence which the Court can rely

upon to convict. It is therefore no longer debatable that a

man may be convicted on his confessional statement alone

which is voluntary, free, positive, so long as the Court is

satisfied of its truth. Such a confession would constitute

proof of guilt of the maker and suffices as evidence upon

which to ground or sustain his conviction. See IDOWU VS

THE STATE (2007) 9 NWLR (PT. 1038) 30; OZANA

UBIERHO VS THE STATE (2005) 4 NWLR (PT. 919)

644 AT 655.

20

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747(

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After all a confession being an admission made at any time

by a person charged with a crime stating or suggesting the

inference that he committed the offence, it is good law that

it is the best evidence in criminal trial that the accused

committed the offence with which he is charged, so long it

satisfies the requirement of the law. See IKPO VS THE

STATE (2016) LPELR 40114 (SC); ADEKOYA VS THE

STATE (2012) 9 NWLR (PT. 1306) 539; ASIMI VS THE

STATE (2016) LPELR – 40436 (SC).

This is so because who else knows it better and can say it

better than the accused who hatched and executed the

crime? This is why in ADEBAYO VS ATTORNEY

GENERAL OGUN STATE (2008) 3 NCC 305 AT 308

Tobi JSC stated thus:

“Confession is the best evidence in criminal law. In it,

the accused admits that he has committed the offence

for which he is charged. For this purpose, the accused

is the figural horses mouth. There cannot be better

evidence."

There can be no doubt that the Appellant admitted hitting

the deceased with a stick, albeit in a fight. The evidence of

PW5 that he saw the Appellant beat the deceased with a

stick and the

21

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747(

CA)

deceased fell down cannot be regarded as hearsay and the

learned trial Judge cannot be faulted for anointing the

evidence of PW5 with credibility.

The only unanswered question in the evidence of PW5 and

the bone of contention between the Appellant and the

Respondent is as to who between the Appellant and the

deceased was the aggressor and who was the victim.

Was it the Appellant who was the aggressor and deceased

the victim or was it the other way round? I will return to

this later in the judgment. It suffices for now that there is

on record sufficient admitted and proved evidence that the

Appellant hit the deceased 3 times and in his evidence in

Court admitted that when he hit the deceased with the

stick, the deceased fell down on the rock and hit his head

and continued hitting his head on the rock attempting to

get up. The cause of death as stated by PW3 and C1 is

severe head injury with complicated cardio respiratory

failure, which is consistent with the injury the deceased

sustained as a result of the beating or the hitting of the

deceased’s head on the rock arising from the beating by the

Appellant. On the cause of death the learned trial Judge

held:

22

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“In the instant case, particularly going by the

evidence of PW3 the Medical Doctor, death of the

deceased resulted from the head injury sustained

sequel to the beating received by the deceased from

the act of the accused, without any break of chain of

causation."

The above finding of fact cannot be faulted. The evidence

on record supports the fact that the death of the deceased

was caused by or resulted from the act of the Appellant’s

beating of the deceased. This ingredient of the offence was

proved beyond reasonable doubt.

The 3rd ingredient is that the act of the Appellant that

caused the death was done with the intention of causing

death or that the accused knew that death would be the

probable consequence of his act.

A man’s intention is usually very different if not impossible

to prove, for even the devil as crafty as it is, has not been

able to know or read a man’s intention. A man’s intention,

invariably can only be inferred from his conduct and

surrounding circumstance within which he acts. It is from

the manifestation of his conduct that his intention can be

ascertained.

23

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747(

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This statement has the backing of a litany of judicial

decisions. See for example AREBAMEN VS THE

STATE (1972) 7 NSCC 194, 200 where the Supreme

Court held.

“Intention is of course difficult to prove affirmatively

without a confession from the accused and can

frequently only be determined by looking at all the

surrounding circumstances and deciding therefrom

whether the natural inference is that such must have

been the intention. A material factor must be the

action or conduct of the accused."

In KOLO VS COMMISSIONER OF POLICE (2017)

LPELR 42577 (SC) Ogunbiyi JSC on how to infer intention

had this to say, inter alia:

“… It is often said that even the devil does not know

the state of a person’s mind as it is the state of his

heart completely within his own Knowledge to the

exclusion of all else …. An intention that you have is

an idea or plan of what you are going to do. The word

intention being subjected in nature therefore can be

inferred from the conduct of a person by manifesting

through his action."

The law therefore presumes that a man intends the natural

and probable consequence of his

24

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747(

CA)

act and is deemed to know the natural consequence of his

action. See GARBA & ORS VS THE STATE (2000) 6

NWLR (PT. 661) 379; STATE VS JOHN (2013) LPELR –

20590 (SC). This is founded on the maxim that the guilty

mind instigates the guilty act or flows into the guilty act.

The act of a person is proof of his mens rea.

In line with these principles of law, the learned trial Judge

held:

“In the light of the overwhelming evidence before the

Court, I find that the accused intended to cause

grievous bodily injury with knowledge that death

would not only be the probable but l ikely

consequence of his action."

I cannot pick hole with this finding of the lower Court

neither can I censure his conclusion that the prosecution

proved all the ingredients of the offence against the

Appellant.

The next to consider is the learned Appellant’s Counsel’s

complain that the learned trial Judge wrongly rejected the

Appellant’s pleas of self-defence and provocation. His

contention is that from the evidence on record particularly

of DW2, DW5 and DW6 (the Appellant) the incident

resulted from a scuffle and fight between the

25

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8) LP

ELR-46

747(

CA)

Appellant and the deceased when the Appellant was in

danger of the deceased’s ramping act of violence, in

response to which the Appellant acted in self-defence and

in provocation.

What is the evidence?

The evidence of DW2 is that he was an eye witness to the

incident, he was together with the deceased, PW5, one

Dalha and Amao at their joint on the rock when the

Appellant arrived. The deceased invited the Appellant aside

and though he did not hear their discussion, he saw the

deceased followed the Appellant and hit him. The Appellant

got hold of his stick and hit back the deceased who fell

down on the rock. It was the noise that woke up PW5 but

before they got to where the deceased fell, he was already

crying and hitting his head on the rock in an attempt to get

up. The Appellant’s version in addition to what DW2 said is

that

“So I turned to go back, he started beating me and I

was wading off with my hand, he hit me on 3 places.

Then I got to where my stick (weapon) was and I

picked it and I then turned back and hit him with the

stick and he fell down on the rock and hit his head

and continued hitting his head while attempting to

get up."

26

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747(

CA)

It was also the evidence of DW1, DW5 and DW6 that the

Appellant also sustained fractures as a result of the fight

which DW5 a traditional bone healer (Orthopaedic Native

Doctor) treated.

Now a successful plea of defence of self-defence is a

complete defence which exonerates or exculpates the

accused person from criminal responsibility as provided by

Section 33(2) of the 1999 Constitution (as amended) to wit:

“A person shall not be regarded as having been

deprived of his life in contravention of this Section, if

he dies as a result of the use, to such and in such

circumstances as are permitted by law, of such force

as is reasonably necessary (a) For the defence of any

person from unlawful violence or for the defence of

property."

This provision is given effect to in our Penal and Criminal

Codes. In Section 59 of the Penal Code, nothing is an

offence which is done in the lawful exercise of the right of

private defence. Section 60 specifically grants to every

person, subject to the restrictions imposed therein, the

right to defend his own body or the body of another person

as well as his property and the

27

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ELR-46

747(

CA)

property of another. Section 62 limits the right. The right

does not extend to the inflicting of more harm than is

necessary to inflict for the purpose of the defence. Herein

lies the crucial question.

This is not all, to justify the taking of another person’s life

in the name of self-defence, Section 222 (2) Penal Code

provides that the right must be exercised in good faith; it

must have been without a premeditation and it must be

without any intention of doing more harm than is necessary

for the purpose of the defence.

Implicit in this are the necessary pre-conditions upon which

the defence is predicated. They are (1) the necessity of the

use of force and (2) the reasonableness or proportion of the

force used in defence. In ADEYEYE VS THE STATE

(2013) 11 NWLR (PT. 1364) 47 Ogunbiyi JSC held:

“The two questions, which ought to be posed and

therefore, answered before the trial Court, were:- (1)

on the evidence, was the defence of self defence

necessary (2) was the injury inflicted proportionate to

the threat offered, or was it excessive? If however, the

threat altered is disproportionate with the force used

in repelling it,

28

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8) LP

ELR-46

747(

CA)

and the necessity of the occasion did not demand

such self defence, then the defence cannot avail the

Accused."

Thus, the conditions upon which the plea can avail an

accused person have been set out in a plethora of judicial

decisions. These are:

a. the accused must be free from fault in bringing

about the encounter;

b. there must be present an impending peril to life or

of great bodily harm either real or so apparent as to

create honest belief of an existing necessity;

c. there must be no safe or reasonable mode of escape

by retreat; and

d. there must have been a necessity for taking life.

See the case of OMOREGIE VS THE STATE (2008) 18

NWLR (PT. 1119) P. 464 AT 482 – 483 PARAG H - C,

and KWAGHSHIR V THE STATE (1995) 3 NWLR (PT.

386) 651.

In the instant case, the Appellant stated that he was wading

off the beating with his hands before he got to where his

own stick was, got hold of it and then turned back to hit the

deceased. Though the Appellant might have had reasonable

apprehension of grevious body hurt to himself from the

deceased’s beating, his action of getting hold of his stick

and turning back

29

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747(

CA)

to hit the deceased instead of running away and escaping

from the beating which he said he was already wading off

with his hands, disqualifies him from the availability of the

self-defence. It cannot be said that there was no safe or

reasonable mode of escape by retreat. In MUHAMMAD VS

THE STATE (2017) LPELR 42098 (SC) Augie JSC who

read the lead judgment in rejecting the plea of self-defence

raised therein quoted in approval the Court’s earlier

decision in OWHORUKE VS C.O.P. (supra), where the

deceased snatched a bottle of drink from the Appellant and

broke it. He then threatened the Appellant with the broken

bottle. The Appellant confessed that he later overpowered

the deceased; seized the broken bottle from the deceased,

and then used it to stab the deceased in the neck. The issue

was whether the Appellant was in apprehension of death or

grievous bodily harm at the time. The Court held that – the

Appellant was no longer in apprehension of death or

grievous bodily harm since he stabbed the deceased after

he had overpowered him and retrieved the broken bottle

from him. Similarly, in the case at hand the Appellant

having turned back to hit the

30

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747(

CA)

deceased when he got hold of his stick instead of

retreating, the learned trial Judge, also rightly rejected the

Appellant’s plea of self-defence.

For the defence of provocation unlike the defence of self-

defence it does not exculpate the accused, it only mitigates

the punishment.

Section 222(4) of the Penal Code provides:

(4) Culpable homicide is not punishable with death if

it is committed without premeditation in a sudden

fight in the heat of passion upon a sudden quarrel

and without the offender’s having taken undue

advantage or acted in a cruel or unusual manner.

In the explanation to the Section, it is provided that it is

immaterial in such cases which party first provokes the

other or commits the first assault. The learned trial Judge

rightly invoked this provision to convict the Appellant for

culpable homicide not punishable with death as a result of

the fighting. He did the right thing. Having found the

Appellant not guilty of the offence of culpable homicide

punishable with death with which the Appellant was

charged, the learned trial Judge rightly on the evidence on

record, convicted the Appellant for the lesser offence of

culpable homicide not punishable with death.

31

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In the Appellant’s 1st issue, he has challenged the sentence

imposed by the trial Court. I have given a due consideration

to the facts of this case and consider the 25 years term of

imprisonment rather too severe. Accordingly, in exercise of

the powers vested in this Court by Section 19(3) of the

Court of Appeal Act, 2004, to reduce or increase sentence

imposed by the trial Court in appropriate cases where the

interest of justice would be better served. See ODEH VS

FEDERAL REPUBLIC OF NIGERIA (2008) 13 NWLR

(PT. 1103) 1 per Musdapher JSC (as he then was), and in

consideration of the extenuating factors in this appeal, the

Appellant being a young man of 25 years and a first

offender; the death of the deceased having resulted from a

fight in which the Appellant also sustained fractures, I

reduce the 25 years sentence which is considered too

severe in the circumstances of this case, to 10 years

imprisonment commencing from the date of his conviction

at the trial Court. See ANASTATUS UWAKWE VS THE

STATE (1974) LPELR - 3447 (SC).

32(2

018)

LPELR

-4674

7(CA)

T h e r e s u l t i s t h a t t h e a p p e a l s u c c e e d s i n

part. Consequently, the conviction of the Appellant for

culpable homicide not punishable with death is affirmed

but the sentence of 25 years imprisonment is reduced to 10

years imprisonment effective from the date of his

conviction at the trial Court.

ZAINAB ADAMU BULKACHUWA, J.C.A.: I have been

privileged to read the draft of the judgment just delivered

by my Learned brother A. A. Wambai, JCA.

I agree with the reasoning and the conclusions reached

therein in partly allowing the appeal.

I abide by the order reducing the sentence of imprisonment

from 25 years to 10 years.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I

have had a preview of the Judgment of my learned brother,

Amina Audi Wambai JCA.

I am in agreement with my learned brother, that the trial

Judge having found the Appellant not guilty of the offence

of culpable homicide punishable with death rightly

convicted him for the lesser offence of culpable homicide

not punishable with death, pursuant to Section 222 (4) of

the Penal Code and I affirm this conviction accordingly.

33

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For the reasons given by my learned brother and the

circumstances surrounding the commission of the offence, I

agree that the sentence of the Appellant be reduced to 10

years. This appeal, in consequence, succeeds in part.

34

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Appearances:

Yakubu A. H. RUBA, Esq., with him, K. S. AdamuEsq., S. S. Shehu Esq., A. O. Jafaru, Esq., C. K.Udeoba, Esq. and A. Hussaini, Esq. ForAppellant(s)

Aliyu Abdullahi, Esq. For Respondent(s)

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