Legalpedia Citation: (2024-03) Legalpedia 38358 (CA)

In the Court of Appeal

Holden At GOMBE

Thu Mar 14, 2024

Suit Number: CA/G/188C/2022

CORAM

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

PARTIES

LAPIRO MUSA

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant woke up one morning and discovered that his cow had been stolen. He reported the loss to the community leaders and then went in search of his stolen cow with his brother, who was charged along with him. They found the cow with the deceased and arrested him. While on their way with the deceased, he attempted to escape, and the Appellant threw a stone at him, causing him to fall. The Appellant then used a rope to tie him up and dragged him into the bush, where he abandoned him. Later, the Appellant was arrested, and he led the investigation team to the bush where the decomposing body of the deceased was recovered.

The Appellant and his brother were later charged with conspiracy to commit culpable homicide punishable by death, and culpable homicide punishable by death. At the close of the Prosecution’s case, the Appellant’s brother, the 2nd accused person, was discharged on a no-case submission. The Appellant then entered his defense. In its judgment, the lower Court discharged the Appellant on the count of conspiracy but convicted him on the substantive count of culpable homicide punishable by death, sentencing him to death by hanging.

Dissatisfied with the decision of the lower Court, the Appellant appealed against it.

HELD

Appeal dismissed

ISSUES

Whether from the totality of the evidence adduced, the Prosecution proved its case beyond reasonable doubt to warrant the conviction and sentence of death imposed on the Appellant?

RATIONES DECIDENDI

JUGMENTS – CONDUCT OF APPELLATE COURTS AND PARTIES WHEN CONSIDERING JUDGMENTS OF COURTS

Let me start by saying that the judgment of a Court, and indeed any decision of a Court, is to be read as a whole and not in convenient installments. It is a single decision and is to be construed holistically. An appellate Court will not allow a litigant to take paragraphs or pages in isolation or in quarantine to pick faults in the judgment. See ADEBAYO vs. A-G OGUN STATE (2008) 7 NWLR (PT 1085) 201 at 221, LAWAN vs. FRN (2020) LPELR (51085) 1 at 81-83, ONI vs. THE STATE (2021) LPELR (54668) 1 at 18, BABA vs. APC (2023) LPELR (60260) 1 at 23, and OPENE vs. NJC (2023) LPELR (60565) 1 at 46-47. The Appellant, in his argument, did not just take paragraphs or pages in isolation; he yanked out sentences from the decision, quarantined, and misconstrued them in order to fault the decision of the lower Court. Such sophism is not permissible. The judgment is not to be read in convenient installments. Accordingly, in considering this appeal and whether the lower Court arrived at the correct decision, I will consider the judgment as a harmonious whole and read it seamlessly, not in installments. – Per U. A. Ogakwu, JCA

BURDEN AND STANDARD OF PROOF – BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS – MEANING OF PROOF BEYOND REASONABLE DOUBT

Now, there is nothing abstruse or esoteric in the legal prescription that, in criminal trials, the charge has to be proved beyond reasonable doubt. Indeed, there is a surfeit of authorities on the principle that it has become banal and exoteric that the burden is on the Prosecution to prove the offence charged beyond reasonable doubt. However, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. When the evidence adduced is strong enough to leave only a remote probability in favor of the defendant, then the case is proved beyond reasonable doubt.

In the words of Oputa, JSC (of most blessed memory) in BAKARE vs. THE STATE (1987) 3 S.C.1 or (1987) LPELR (714) 1 at 12-13: “Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt, that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 ALL E.R. 373: ‘The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favor which can be dismissed with the sentence- “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt.’’

Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. At nisi prius, it was held that the Prosecution discharged the burden on it, consequent upon which the Appellant was convicted as charged. The Appellant has contended in this appeal that the essential ingredients of the offences charged were not proved beyond reasonable doubt and that the lower Court was wrong to convict. – Per U. A. Ogakwu, JCA

PROSECUTION – WAYS THE PROSECUTION MAY PROVE THE GUILT OF THE ACCUSED PERSON

It is rudimentary law that there are three ways or methods by which the Prosecution may prove the guilt of an accused person. These are:

1. By reliance on a confessional statement of an accused person voluntarily made;

2.By circumstantial evidence; and

3.By the evidence of eyewitnesses.

See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2001) 8 NWLR (PT. 1234) 209 at 236, OLAOYE vs. THE STATE (2018) LPELR (43601) 1 at 13, ADEYEMO vs. THE STATE (2015) LPELR (24688) 1 at 16, and OGOGOVIE vs. THE STATE (2016) LPELR (40501) 1 at 11, which also seemed to have added a fourth way or method, id est, “admission by conduct of the accused person/appellant.” (per Odili, JSC). – Per U. A. Ogakwu, JCA

CONFESSIONAL STATEMENT – THE IMPORTANCE OF A CONFESSIONAL STATEMENT – WHETHER A PERSON CAN BE CONVICTED ON THE BASIS OF A FREE AND VOLUNTARY CONFESSIONAL STATEMENT

It is settled law that there is no evidence stronger than a person’s own admission or confession. The confessional statement made by an accused person is potent evidence in the hands of a Prosecutor for proving a charge. It is the best and safest evidence on which to convict. See ADEBAYO vs. A-G OGUN STATE (2008) 7 NWLR (PT. 1085) 201 at 221, USMAN vs. THE STATE (2011) 3 NWLR (PT 1233) 1 at 11, and OSENI vs. THE STATE (2012) 5 NWLR (PT 1293) 351 at 387. The free and voluntary confessional statement of an accused person alone is enough to sustain the conviction of an accused person where such voluntary confession of guilt is direct and positive, and the Court is satisfied as to its truth. See YESUFU vs. THE STATE (1976) 6 SC 167 at 173, IDOWU vs. THE STATE (2000) 7 SC (PT II) 50 at 62-63, DIBIE vs. THE STATE (2007) 9 NWLR (PT 1038) 30 at 51 and 636, KAZA vs. THE STATE (2008) 7 NWLR (PT 1085) 125 at 166, 194 and 195, OSENI vs. THE STATE (supra) at 374, and EGBOGHONOME vs. THE STATE (1993) 7 NWLR (PT 306) 385.

The Appellant’s statements, Exhibits P1 and P3 (in Hausa), and P1A and P3A (English translation) are confessional statements. The statements were voluntarily made, they were admitted without objection, and they were not retracted at the trial. The law remains that an accused person can be convicted solely on his confessional statement freely and voluntarily made: SAIDU vs. THE STATE (1982) 4 SC 41, TOPE vs. THE STATE (2019) LPELR (47837) 1 at 12, IMOH vs. THE STATE (2016) LPELR (47989) 1 at 11, and THE STATE vs. AHMED (2020) LPELR (49497) 1 at 27-28. – Per U. A. Ogakwu, JCA

CULPABLE HOMICIDE – THE INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH

The Appellant was convicted for the offence of culpable homicide punishable with death. The essential ingredients to establish in the Charge are:

1. That the deceased is dead

2. That the death of the deceased is the result of the act or omission of the accused person (the Appellant herein)

3. That the act or omission of the accused person (Appellant) which has caused the death of the deceased is intentional with full knowledge that death or grievous bodily harm is the probable consequence.

See ILODIGWE vs. THE STATE (2012) LPELR (9342) 1 and UWAGBOE vs. THE STATE (2008) LPELR (3444) 1 at 29.

In order to secure a conviction for culpable homicide punishable with death, the Prosecution must prove beyond reasonable doubt that the death of the deceased was caused directly or indirectly by the act of the accused person. The Prosecution has to establish not only that the act of the accused person caused the death of the deceased but also that, in actual fact, the deceased died as a result of the act of the accused person to the exclusion of all other possibilities. – Per U. A. Ogakwu, JCA

ATTACK – WHERE A PERSON DIES ON THE SPOT AFTER AN ATTACK – WHETHER A MEDICAL REPORT IS NECESSARY WHERE THE CAUSE OF DEATH IS OBVIOUS

It is settled law that where a person who is attacked dies on the spot or shortly afterward, it is reasonable to infer that the injury inflicted on him as a result of the attack caused the death. See EDOHO vs. THE STATE (2010) LPELR (1013) 1 at 18-19.

However, it is hornbook law that there are circumstances where medical evidence as to the cause of death can be dispensed with. The Appellant’s confessional statement is that after he had hit the deceased with a stone and tied him with a rope, he discovered that the deceased was already dead, whereupon he threw his corpse into the bush and went home. So, the evidence is that the deceased died almost instantaneously following the stone hitting him. I iterate that where a person dies on the spot following an attack, the cause of death can be properly inferred to be from the attack. Put differently, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity. This is especially so when, as disclosed by the evidence in this matter, death was instantaneous or nearly so following the attack. See BAKURI vs. THE STATE (1965) NMLR 163 at 164, BEN vs. THE STATE (2006) LPELR (770) 1 at 12-13, JIBRIN vs. THE STATE (2021) LPELR (56233) 1 at 34-35, and JIBRIN vs. KANO STATE (2023) LPELR (60433) 1 at 45-47. It is therefore not fatal, and indeed of no legal consequence that no medical evidence of the cause of death was led. – Per U. A. Ogakwu, JCA.

SELF-DEFENCE – THE MEANING OF SELF DEFENCE – INGREDIENTS TO BE ESTABLISHED FOR THE DEFENCE OF SELF-DEFENCE TO AVAIL AN ACCUSED/APPELLANT

By all odds, the law recognizes that if a man is attacked in circumstances where he seriously believes that his life is in danger of serious bodily harm, he may use such force as he believes is necessary to prevent and resist the attack. If in so doing he kills his assailant, he is not guilty of any crime even if the killing was intentional. In deciding whether the force used was reasonable, regard is had to the peculiar circumstances of the case including the possibility of retreating without danger or yielding anything that he is entitled to protect. See LAOYE vs. THE STATE (1985) 2 NWLR (PT 10) 832 and AJUNWA vs. THE STATE (1988) LPELR (308) 1 at 10-11.

The confessional statements of the Appellant are clear that the deceased wanted to escape and was running away when the Appellant threw the stone at him. I join the lower Court in asking how it could be that the Appellant was acting in self-defense when he attacked the deceased, who was merely trying to run away, by throwing a stone at him?

In order for self-defense to be availing, the Appellant must show that his life was so much endangered by the act of the deceased that the only option left for him to save his own life was to kill the deceased. He must show that he did not want to fight and was prepared to withdraw. See THE STATE vs. UMUNU (1968) NMLR 15 at 20, NWEDE vs. THE STATE (1985) 12 SC 32 at 36, NWUZOKE vs. THE STATE (1988) LPELR (2135) 1 at 15, and STEPHEN vs. THE STATE (1986) LPELR (3117) 1 at 12. In UWAGBOE vs. THE STATE (supra) at 18, Akintan, JSC stated thus:

“The defense of self-defense is open only to an accused person who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm. But he is even entitled to use such force to defend himself as he believes on reasonable grounds to be necessary to preserve himself from the danger, and this he is entitled to do even though such force may cause death or grievous harm. If the act of self-defense is committed after all danger from the assailant is past and by way of revenge, the defense will not be available to such an accused person.”

In his own contribution at page 33, Onnoghen, JSC opined:

“It is settled law that for the defense of self-defense to avail the appellant, he must establish the following:

1. i) That the nature of the attack by the deceased was such as to cause a reasonable apprehension of death or grievous harm to the accused, and

1. ii) That the accused in fact apprehended death or grievous harm.” –Per U. A. Ogakwu, JCA

ACCIDENT – REQUIREMENTS FOR AN ACT TO QUALIFY AS AN ACCIDENT – WHETHER A PERSON RELYING ON SELF-DEFENCE CAN ALSO RELY ON THE DEFENCE OF ACCIDENT

Indeed, the defense of self-defense and accident are mutually exclusive, such that they are contradictory or inconsistent. This is so because for an act to qualify as an accident, it has to be the result of an unwilled act, an event that occurs without the fault of the person alleged to have caused it. On the other hand, self-defense means that the accused person willingly did the act while in the process of defending himself. See generally ADEKUNLE vs. THE STATE (2006) ALL FWLR (PT 323) 1452 at 1464, OLUDAMILOLA vs. THE STATE (2010) 8 NWLR (PT 1197) 565 at 581, SULE vs. THE STATE (2009) LPELR (3125) 1 at 27, and EMMANUEL vs. THE STATE (2017) LPELR (43550) 1 at 40-43. The lower Court was therefore right when it held that the defense of accident was not available to the Appellant. – Per U. A. Ogakwu, JCA

JUSTIFICATION – CONDITIONS FOR THE DEFENCE OF JUSTIFICATION TO AVAIL AN ACCUSED/APPELLANT

As regards the defense of justification, for it to avail the Appellant, the conditions set out in Section 45 of the Penal Code have to be satisfied. The said Section stipulates:

“45. Nothing is an offence which is done by a person who is justified by law or who by reason of a mistake of fact and not by reason of law, in good faith believes himself to be justified by law in doing it.”

For the Appellant to take benefit of this provision, it must be shown that:

(1) His action is justified by law;

(2) His action was done as a result of a mistake of fact, not a mistake of law; and

(3) He acted in good faith believing himself to be justified by law in doing it.

See ANNABI vs. THE STATE (supra) at 9-10, SHALLA vs. THE STATE (2007) LPELR (3034) 1 at 26, and KAZA vs. THE STATE (supra) at 64. It is imperative to state that the above provision of the Penal Code is in line with Section 33 (2) (b) of the 1999 Constitution, as amended, which was relied upon by the Appellant. The apex Court has, however, warned that Courts should be wary of applying the statutory defenses implied in Section 33 (2) (b) of the 1999 Constitution, as amended, as the said provision does not afford a license to summarily execute or kill a suspect extra-judicially even if the deceased be a thief or a person of dubious character. See IBIKUNLE vs. THE STATE (2007) 2 SCM 73 at 76 or (2007) 2 NWLR (PT 1019) 546 and ADEGBOYE vs. THE STATE (2017) LPELR (42099) 1 at 13-17 and 35-38. – Per U. A. Ogakwu, JCA

DELIBERATE ACT – WHETHER A MAN INTENDS THE NATURAL CONSEQUENCE OF HIS DELIBERATE ACT WHEN IT RESULTS IN DEATH OR GRIEVOUS BODILY HARM

The law is that every man is presumed to intend the natural consequences of his deliberate act when the said act causes death or grievous bodily harm. The Appellant’s action, as depicted by the clear facts of this matter, was conscious and deliberate. The action was aimed at the deceased with a deliberate and clear intention to cause serious injury without lawful excuse. Therefore, it cannot be confuted that the third ingredient, id est, that the act of the Appellant which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm is a probable consequence, was proved. See generally ONYE vs. THE STATE (1994) 10 SC 81 and NWOKEARU vs. THE STATE (2013) LPELR (20642) 1 at 36. The law remains that a person intends the natural consequences of his action and where there is an intention to cause grievous bodily harm and death results, then the accused person must be held liable for the offense of culpable homicide punishable with death. – Per U. A. Ogakwu, JCA

EVALUATION OF EVIDENCE – THE PRIMARY DUTY OF TRIAL COURTS TO EVALUATE EVIDENCE – CONDUCT OF APPELLATE COURTS TO FINDINGS OF FACTS BY TRIAL COURTS

It is rudimentary law that the evaluation of evidence and ascription of probative value thereto is in the province of the trial Court, which had the opportunity of hearing the testimony of the witnesses and observing their demeanor. An appellate Court would not generally interfere with the findings of a trial Court in this regard unless the same is shown to be perverse. See ONOGWU vs. THE STATE (1993) 6 NWLR (PT 401) 276 at 552. In other words, an appellate Court will not ordinarily interfere with the findings of facts made by a trial Court on credibility of witnesses unless it is shown that such findings are perverse or are not the result of proper evaluation of the evidence. See SANYAOLU vs. THE STATE (1976) 5 SC 37, RABIU vs. THE STATE (1980) 8-11 SC 130, ADELUMOLA vs. THE STATE (1988) 1 NWLR (PT 73) 683, SUGH vs. THE STATE (1988) 2 NWLR (PT 77) 475 and THE STATE vs. NNOLIM (1994) 5 NWLR (PT 345) 394. The findings of facts and conclusions reached on the evidence by the lower Court are not perverse. The Appellant’s failure to show that the findings are perverse signifies the lack of merit in this appeal. See SANDE vs. THE STATE (1982) 4 SC 41, THE STATE vs. AIBANGBEE (1998) 3 NWLR (PT 84) 548 and DIBIE vs. THE STATE (2007) ALL FWLR (PT 353) 83 at 102 and 110. – Per U. A. Ogakwu, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Penal Code
   

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