May 15, 2025
Legalpedia Citation: (2013-03) Legalpedia 38085 (CA) In the Court of Appeal abuja Sun Mar 31, 2013 Suit Number: CA/J/8C/2013 CORAM PER J. T. TUR, J.C.A PARTIES ALI […]
CORAM
PER J. T. TUR, J.C.A
PARTIES
ALI ZAMAN
APPELLANTS
THE STATE
RESPONDENTS
AREA(S) OF LAW
APPEAL, COURT, CRIMINAL LAW AND PROCEDURE, FAIR HEARING, INTERPRETATION OF STATUTE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES
SUMMARY OF FACTS
The Appellant was arraigned before the Borno State High Court of Justice, Maiduguri Division on a one (1) Count charge of Murder, an offence punishable under Section 221(b) of the Penal Code Law, to which he pleaded not guilty. At the end of the trial, the lower Court found the Appellant guilty, convicted and sentenced him to death. Aggrieved by the judgment of the lower Court, the Appellant had appealed against same vide his Notice and Grounds of Appeal which was subsequently amended.
HELD
Appeal Allowed
ISSUES
1. Whether the arraignment, trial, conviction and sentence of the appellant by the learned trial Judge was not a nullity due the fact that there was no evidence on the face of the record that the charge was read to him.
2. Whether the trial, conviction and sentence of the appellant was not a nullity in view of the learned trial Judge’s earlier disqualification of himself from continuation of the trial, having been full seized of the facts of the case in his home town, thus having his mind biased already.
3. Whether the learned trial Judge was right in his judgment not to have considered the defence of self defence put up by the appellant in Exhibit “A1”-“A3” and “C1”-“C2”.
4. Whether the learned trial Judge was right in law to convict and sentence the appellant upon the Evidence adduced.
RATIONES DECIDENDI
APPEAL, PRACTICE AND PROCEDURE
FORMULATION OF ISSUES FOR DETERMINATION – WHETHER RESPONDENTS ARE AT LIBERTY TO FORMULATE DISTINCT ISSUES FOR DETERMINATION
“My humble opinion is that by the provisions of Order 18 Rule 3(4) and 4(1) and (2) of the Court of Appeal Rules, 2011, it is a party aggrieved by the decision of a Lower Court that usually appeals and settles in the brief of argument what he considers to be the issues arising from the judgment, taking into consideration the amended or additional grounds of appeal. The duty of the respondent is to answer all the material points raised by the appellant in his brief of argument. The course of doing so, the respondent will concede some points not in dispute, but show why the appeal should be dismissed. Without a cross-appeal or a Respondent’s Notice, I do not appreciate respondents or their learned Counsel formulating distinct issues for determination. Respondents will do well if they merely adopt the issues formulated by the appellant for determination. This is to avoid a proliferation of issues for determination by the Appeal Court. See Ononuju vs. State (2014) 8 NWLR (Pt.1409) 345 at 378 paragraphs “A”-“D”; Akinlagun vs. Oshobajo (2006) 12 NWLR (Pt.993) 60 at 80 paragraphs “D”-“E” and Atanda & Ors. vs. Akanji & Ors. (1989) 2 NSCC 511 at 537. -PER J. T. TUR, J.C.A
COURT, CRIMINAL LAW AND PROCEDURE, INTERPRETATION OF STATUTE, PRACTICE AND PROCEDURE
COURT – DUTY OF COURT TO ALWAYS EXAMINE THE SECTIONS OF A STATUTE UNDER WHICH AN ACCUSED IS CHARGED AND SEEK THE CORRECT INTERPRETATION OR CONSTRUCTION
“The Court was bound to enter a plea of not guilty when the charge was read and explained to the appellant at the time of arraignment. Even if the charge was read but the appellant did not plead or pleaded guilty, it was mandatory for the learned trial Judge to enter a plea of not guilty. Learned Counsel should always examine the sections of penal statutes under which an accused is charged with an offence and seek the correct interpretation or construction rather than relying on previous authorities without taking into consideration the facts and circumstances under consideration. In Odu vs. The State (1965) NMLR 129, the Supreme Court held at page 131 per Brett, JSC that:
“…With respect, we think that the most profitable approach to the interpretation of the Criminal Code is to begin by examining the words of the Code itself, and that decisions on the common law are only of value where the wording of the code is obscure or capable of bearing more than one meaning, when they may be referred to for the purpose of ascertaining the sense in which words are used in the Code”
See also Nwobodo vs. Onoh (1984) NSCC 1 per Bello, JSC (as he then was) at page 14”. -PER J. T. TUR, J.C.A
COURT, PRACTICE AND PROCEDURE
COURT – WHETHER A TRIAL JUDGE HAS THE COMPETENCE TO SUO MOTU TRANSFER A CASE TO THE CHIEF JUDGE FOR RE-ASSIGNMENT
“The learned trial Judge lacked the competence to have suo motu transferred the proceedings to the learned Chief Judge for re-assignment to another Judge. The exercise of such power of transfer is restricted to an area Court having jurisdiction in a criminal trial. Only the Chief Judge of the State could have transferred the criminal proceedings before judgment, either with, or without application from any of the parties thereto, to any other Judge. The learned trial Judge exercised powers not conferred on him by statute hence the learned Chief Judge was right to have remitted the case to him to continue with the proceedings”. -PER J. T. TUR, J.C.A
WORDS AND PHRASES, COURT
JUDICIAL BIAS – MEANING OF JUDICIAL BIAS; ITS EFFECT AND APPLICATION
“Judicial bias” is what is under consideration in this issue. The expression means “A judge’s bias toward one or more of the parties to a case over which the judge presides. Judicial bias is usually not enough to disqualify a judge from presiding over a case unless the judge’s bias is personal or based on some extra-judicial reason.” See Black’s Law Dictionary, 9th edition, page 183. As rightly submitted by the learned Counsel to the respondent, Pw5 was not a party but a witness called by the prosecution. In the process of Pw5’s testimony, the learned trial Judge made the entries on record now the subject of attack on appeal.
The learned trial Judge did not tell the whole world whether Pw5 had private audience with him, or briefed him before he came to testify in his Court. In Olve & Ors. vs. Enenwali & Ors. (1976) 1 NMLR the Supreme Court held at page 49 to 50 per Nasir, JSC (as he then was) as follows:
“Of the cases referred to by Mr. Balogun, the case of Obadara and Ors. vs. The President, Ibadan West District Grade “B” Court (1964) 1 All NLR 336 is in our view relevant in that it has enunciated the correct position of the law. In giving the judgment of the Court, Brett, A-G. C.J.N, stated at page 344 as follows:
“The principle that a judge must be impartial is accepted in the jurisprudence of any civilized country and there are no grounds for holding that in this respect the law of Nigeria differs from the law of England or for hesitating to follow the English decisions. The English decisions were reviewed by the Divisional Court in R. vs. Camborne Justices (1955) 1 Q.B. 41, and we would adopt the following passage from page 51 of the judgment as setting out the law to be applied in Nigeria – Blackburn, J., namely, that to disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject matter of the proceedings, a real likelihood of bias must be shown. This Court is further of opinion that a real likelihood of bias must be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries.”
The decision in R. vs. Camborne Justices, ex p. Pearce (1955) 1 Q.B. 41 (already referred to above) together with other authorities were reviewed by Lord Denning, M.R. in the more recent case of Metropolitan Properties Co. (F.G.C.) Ltd. vs. Lennon (1969) 1 Q.B. 577, 598. After reviewing the facts in the case before him, His Lordship said in respect of the law as follows:
“A man may be disqualified from sitting in a judicial capacity on one or two grounds. First, a “direct pecuniary interest” in the subject matter. Second, “bias” in favour of one side or against the other…
So far as bias is concerned, it was acknowledged that there was no actual bias on the part of Mr. Lennon, and no want of good faith. But it was said that there was, albeit unconsciously, a real likelihood of bias. This is a matter on which the law is not clear; but I start with the oft-repeated saying of Lord Heward, C.J., in R. vs. Sussex Justices, ex p. McCarthy (1924) 1 K.B. 256, 259: ‘It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.’
In R. vs. Barnsley Licensing Justices, ex p. Barnsley and District Licensed Victuallers’ Association (1960) 2 Q.B. 167, 187, Devlin, J., appears to have limited that principle considerably but I would stand by it.
It brings home this point: in considering whether there was a real likelihood of bias, the Court does not look at the mind of the Chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact he would, or did, favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand; see R. vs. Huggins (1895) 1 Q.B. 563 and R. vs. Sunderland Justices (1901) 2 K.B. 357 at C.A. per Vaughan Williams, L.J. Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough: see R. vs. Camborne Justices, ex p. Pearce (1955) 1 Q.B. 41 and R. vs. Nailsworth Licensing Justices, ex p. Bird (1953) 2 All E.R. 652, D.C. There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘the judge was biased.'”
-PER J. T. TUR, J.C.A
FAIR HEARING NATURAL JUSTICE – ESSENTIAL ELEMENTS OF NATURAL JUSTICE
“However, the two essential elements of natural justice with which we are concerned in this appeal are that:
(1) No man shall be judge in his own cause; and
(2) Both sides shall be heard, or audi alterem partem.
As regards the first principle, the truism that, “Judges, like Caesar’s wife, should be above suspicion” was given due recognition in the dictum of Brown, L.J., in Leeson vs. General Council of Medical Education (1890) 43 Ch.D. 366, 385. We have already dismissed the argument that the learned judge had a legal “interest” which disqualified him from hearing the action however, the examination of the allegation of “interest” or “bias” or real likelihood of bias on the part of the trial Judge in the conduct of the proceedings before him goes much further than this. Although the smallest pecuniary interest will disqualify a Judge, there are other grounds based on public policy on which bias or the real likelihood of bias may disqualify a Judge. Lush, J., said in Serjeant vs. Dale (1877) 2 Q.B.D. 558, 567:
“The law, in laying down this strict rule, has regard not so much perhaps to the motive which might be supposed to bias the Judge as to the susceptibilities of the litigant parties. One important object, at all events, is to clear away everything which might engender suspicion and distrust of tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security.”
Again, in Metropolitan Properties vs. Lennon (1969) 1 Q.B. 577, Lord Denning, M.R. said at page 599:
“In considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact, favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then, he not sit. And if he does sit, his decision cannot stand….. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough…
There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘the judge was biased.”
-PER J. T. TUR, J.C.A
WORDS AND PHRASES RUMOUR AND RUMOUR – MONGER – MEANING OF RUMOUR AND RUMOUR-MONGER
“In Senator Adesanya vs. The President, Federal Republic of Nigeria (2001) FWLR (Pt.46) 8159, Fatayi-Williams, CJN, in a case founded on locus standi, held at page 586 paragraph “A” of the judgment as follows:
“….I take significant cognizance of the fact that Nigeria is a developing country with a multi-ethnic society and a written Federal Constitution, where rumour-mongering is the pastime of the market places and the construction sites…”
When the killing of a person in a village or town occurs, it is expected that before the killer is known, the “Amebos” of the famous soap opera like in the Village Headmaster, would be spreading rumours here and there, near and far. A “rumour” is “a piece of information, or a story, that people talk about, but that may not be true.” A “rumour-monger” is “a person who spreads rumours.” See Oxford Advanced Learner’s Dictionary, 8th edition, page 1296. -PER J. T. TUR, J.C.A
LAW OF EVIDENCE CONTRADICTION IN THE EVIDENCE OF PROSECUTION WITNESS – WHAT AMOUNTS TO MATERIAL CONTRADICTION IN THE EVIDENCE OF PROSECUTION WITNESS
“So, where did the doctor examine the corpse – at the General Hospital, Damboa or in the bush where the corpse was retrieved If the investigating police officer (Pw1) who retrieved the corpse testified that the post mortem was carried out at the General Hospital, Damboa, and this tarries with the evidence of the Medical Doctor (Pw2), but this is in material conflict with Pw3 and Pw4’s evidence that the examination was in the bush where the corpse was found, I am of the humble opinion that the inconsistencies in the evidence of Pw1, Pw2, Pw3 and Pw4 on where the post mortem was carried out is material and needed explanation. See Boy Muka vs. The State (1976) 9-10 SC 305; Onugbogu vs. The State (1974) 9 SC 1; Ateji vs. The State (1976) 2 SC 79 and Jizurumba vs. The State (1976) NMLR 303”. -PER J. T. TUR, J.C.A
WORDS AND PHRASES DEFINITION OF TERMS – DEFINITION OF THE TERMS “CORONER”, “PATHOLOGY” “PATHOLOGIST” “AUTOPSY” AND “POST MORTEM EXAMINATION”
The word “doctor,” and the expression “medical doctor” or “medical officer” are not defined in the British Medical Association Illustrated Medical Dictionary, 2nd edition, 2009. A “Coroner” is defined in the dictionary at page 147 as, “A public officer appointed to inquire into the cause of death when it is unknown, or when it is suspected or known to result from unnatural causes. The Coroner holds an inquest, sometimes before a jury.”
The authors define “pathology” and a “pathologist” at page 436 as, “The study of disease – its causes, mechanisms, and effects on the body. Pathologists conduct autopsies to determine causes of death and to determine the effects that a disease or a treatment has had.” The phrase “Medical Doctor” or “medical officer” are also not defined in the Illustrated Medical Dictionary, 2nd edition, 2009. The British Medical Association describes the dictionary as, “The only full-colour illustrated dictionary that provides authoritative yet accessible definitions of every important term” at the back cover. This has legal implications.
The expressions “Medical Doctor” or “medical officer” are not important medical expression. They are vague, though in common day usage. A “pathologist” but not a “medical doctor” or “medical officer” ought to be qualified to perform autopsy or post-mortem examination on corpses. “Autopsy” is defined as “A post mortem examination of the body, including the internal organs, usually to determine the cause of death.” (p.61).
“Post mortem examination” means “An alternative term for an autopsy.” (p.458).
-PER J. T. TUR, J.C.A
“EXAMINATION”-MEANING OF “EXAMINATION”
An “examination” simply means “the act of looking at or considering something very carefully.” It could be just “a close look at something or somebody, especially to see if there is anything wrong or to find the cause of a problem.” See Oxford Advanced Learner’s Dictionary, 8th edition, page 505. -PER J. T. TUR, J.C.A
LAW OF EVIDENCE, CRIMINAL LAW AND PROCEDURE, PRACTICE AND PROCEDURE
EVIDENCE – DUTY OF A MEDICAL DOCTOR WHO TESTIFIES THAT HE PERFORMED THE POST MORTEM EXAMINATION
“It is not enough for a medical doctor to testify that he examined the corpse without showing how the examination was carried out. There should be evidence how the examination was carried out to arrive at the cause of death of the person for which the accused is standing trial.
In Frank Onyenankeya vs. The State (1964) NMLR 34, Pw1, a girl of six years saw the appellant hit the deceased on the head with an iron rod as they quarreled. But the girl could not tell the day or the month this happened. The doctor who performed the post mortem (Pw2) testified there was no external evidence of violence. Pw2 told the Court he could not say what the cause of the death was. Other prosecution witnesses did not help matters. At page 35 of the judgment, Taylor, JSC held that:
“…The point that arose during the hearing of the appeal was whether there was any evidence as to the cause of death, or to put it in another way, whether it was shown that the act of the appellant caused the death of the deceased.”
At page 36 his Lordship held as follows:
“It is good law that medical evidence is not always essential though desirable to prove the cause of death, but the evidence must in any case be such as to (sic) how that the death of the deceased was caused by the act of the appellant.”
Where a Medical Practitioner performed the post mortem examination testifies as a witness, the most crucial question is: Was the cause of death proved In Rex vs. William Oledima (1940) 6 WACA 202 the Medical Practitioner performed the post mortem examination on the deceased testified as follows:
“On 11th April, 1940 I conducted a post mortem on Joseph Anyanwu identified to me by Ekechuku – Death had taken place about 48 hours before – The right leg, thigh and hip bigger circumference than left crackling with emphysema – in right buttock – wound 1%” long caused by sharp instrument – out of the wound came blackish fluid – Iincised it and saw 3″ showed lesser decay but were also emphysematous – it was a typical advanced infection of gas gangrene – The cause of death was infections due to gas gangrene – An injection could cause the infection if the needle were dirty or germs in the injection or germs on the skin introduced into the body by injection.”
Nevertheless, the West African Court of Appeal held at page 202 as follows:
“Now to establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death of the deceased, but that it did.
-PER J. T. TUR, J.C.A
“MEDICAL EXAMINER”– MEANING OF A “MEDICAL EXAMINER.”
The phrase “any medical officer” or “registered medical practitioner,” or “pathologist” may be grouped or classified as “medical examiner.” The expression means “A public official who investigates deaths, conducts autopsies, and helps the state prosecute homicide cases. Medical examiners have replaced coroners in many states – sometimes shortened to examiner.” See Black’s Law Dictionary, 9th edition, page 1071”. PER J. T. TUR, J.C.A
LAW OF EVIDENCE, CRIMINAL LAW AND PROCEDURE, PRACTICE AND PROCEDURE
EXPERT WITNESS – PROCEDURE TO BE FOLLOWED WHERE AN EXPERT WITNESS TENDERS AN EVIDENCE
“Where the evidence or report is from “any medical doctor,” a “registered medical practitioner,” “coroner” or “pathologist” the medical witness or the report, if tendered, should describe the nature of any external or internal injuries received by the deceased and where possible, the physical cause of death.
The next is for the learned trial Judge to form an opinion on the evidence of the medical witness or the report tendered to prove the cause of death. Section 68(1) (2) and 71 of the Evidence Act, 2011 provides as follows:
“68(1) When the Court has to form an opinion upon a point of ….. Science…. the opinions upon that point of persons especially skilled in such science are admissible.
(2) Persons so specially skilled as mentioned in Subsection (1) of this section are called experts. ………..
71. Facts not otherwise relevant are relevant if they support or are inconsistent with the opinions of experts, when such opinions are admissible.”
Therefore, it is not enough to admit the evidence of a “medical doctor”, “a registered medical practitioner”, a “coroner” or “pathologist”, etc, as provided under Sections 149-250A of the Criminal Procedure Code. For the Court to form an opinion on their evidence where they testified as a witness or their report was tendered and admitted as an exhibit, the prosecution should have led evidence to show that the evidence or report is from “persons specially skilled in such science” as to come within the definition of an “expert” under Section 68(1) and (2) and 71 of the Evidence Act, 2011. An “expert” is a person who is “specially skilled” as mentioned in Subsection (1) of Section 68 and 71 of the Evidence Act, 2011. Then would his evidence or report be relevant. The opinion would be relevant if it “supports” or is “inconsistent” with the facts established at the trial. -PER J. T. TUR, J.C.A
LAW OF EVIDENCE
IDENTIFICATION – EFFECT OF LACK OF PROPER IDENTIFICATION OF THE CORPSE FOR POST MORTEM
“On the issue of proper identification of the corpse for post mortem or autopsy, I shall refer to Msughando vs. The State (1980) 2 NCR 23 where Ademola, JCA held at page 31 lines 38 to page 32 lines 1-34 as follows:
“Learned Counsel for the appellant however submitted that the person named on the medical report as having identified the body to the doctor who performed the post-mortem examination was not called to give evidence to connect the medical report with the person named as the deceased. This ground of appeal, to my mind is a good one. The learned trial Judge himself in the course of his judgment had this to say:
“The post-mortem examination was performed on May 20th, 1976 and the report showed that one Adamu Salihu identified the corpse of the deceased. It is strange that the prosecution did not think it is important to call this Adamu Salihu. I must however mention here that the defence did not question the identity of the deceased and I further hold that the identity of the victim allegedly shot by the first accused is not in dispute in view of the testimonies of the first and third witnesses for the prosecution.”
With great respect to the learned trial Judge he seems to have overlook one important fact: that the plea of not guilty recorded by him on behalf of the appellant means that every allegation of fact contained in the charge before the Court is denied by the appellant including, for the purpose of this case, the identity and the name of the person allegedly killed by him. The fact that the first three prosecution witnesses named the person killed as Kaduna Sule in their testimony does not necessarily mean that the medical officer who made the medical report performed a post-mortem examination on Kaduna Sule. The medical officer does not know the person upon whom he has performed a post-mortem examination. The mere fact that he inserted the name of a person i.e. Kaduna Sule, on the medical report is a piece of hearsay evidence and that hearsay evidence cannot be admissible. The witness who supplied the information as to the identity of the deceased to the medical officer in the making of the medical report must of necessity be called. To the extent that this has not been done the report is not a strong piece of evidence against the appellant, whatever it may contain. It does not establish beyond any shadow of doubt the identity of the person allegedly shot by the appellant. In my view, this ground of appeal must succeed.”
Again in Adi vs. State (1980) 2 NCR 323, Ademola, JCA held at page 330 lines 30 to page 332 lines 1-11 as follows:
“Finally on the minor points, I agree entirely with the submission of Mr. Brown Peterside that the report on the deceased does not establish the identity of the person said to have suffered the injuries alleged therein with the person alleged in the charge to be the victim of the appellant’s act. The reasons for this are well stated in his argument. At the risk of repetition: he submitted that no doctor was called who made the report and the report did not say who identified the body of the deceased to the maker of the report and no such person who identified the body gave evidence. This is a serious gap in the case of the prosecution to prove its case beyond reasonable doubt; see the judgment of this Court in Msughando vs. State (1980) NCLR 23.
-PER J. T. TUR, J.C.A
“CONFESSION” – MEANING OF CONFESSION”
“Section 28 of the Evidence Act, 2011 defines “a confession” as “an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.” PER J. T. TUR, J.C.A
WORDS AND PHRASES
“ADMISSION” – MEANING OF “ADMISSION”
“An “admission” is “a statement, oral or documentary, or conduct which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and in the circumstances hereafter mentioned in the Act.” See Section 20 of the Act (supra). But Section 27 of the Evidence Act (supra) makes it clear that “Admissions are not conclusive proof of the matters admitted but they may operate as estoppel under part …”
-PER J. T. TUR, J.C.A
COURT, CRIMINAL LAW AND PROCEDURE, PRACTICE AND PROCEDURE
COURT – DUTY OF THE COURT NOT TO SPECULATE ON POSSIBLE DEFENCES, WHERE THE EVIDENCE SUGGESTS A LINE OF DEFENCE
“In Kavuwa Takida vs. The State (1969) 1 All NLR 270 the Supreme Court held at page 273-274 per Coker, Ag. C.J.F., that:
“No Court is bound to speculate on what possible defences can be open to a person accused before it, but where in a trial for homicide, the evidence suggests a line of defence; it is the duty of the Court to consider and deal with that defence whether or not the accused or his Counsel expressly raised that defence by the legal terminology ascribed to it by lawyers. In the instant case both in his defence before the Court and the statement he made to the police the appellant alleged a fight and the learned trial Judge should have dealt with that issue.”
Belief or disbelief of an appellant or a witness becomes immaterial when there is only one version of evidence relating to a material fact, in this case, the events that led the appellant to stab the deceased to death in the course of the fight which establishes self-defence. See Modupe vs. The State (1988) 9 SCNJ 1; Okosi vs. State (1989) 2 SCNJ 183 and Akwa vs. Commissioner of Police (1977) NNLR 98 at 103 .
In Saidu vs. The State (1982) 1 NCLR 49, Obaseki, JSC held at page 62 as follows:
“Where a mixed statement, namely, one containing confessions and self-exculpatory parts, is under consideration by a jury in a case where the person charged has not given evidence, in deciding where the truth lies the jury has to consider the whole statement, both the incriminating part and the excuses or explanations; see R. vs. Duncan (1981) 73 Cr. App. R.359; (1981) Crim. L.R. 560. The appellant’s statement in this case is a mixed statement, one part containing what has been described as a confession, although the victim was not identified as the deceased, and the other part exculpatory in that the stabbing of one of the several unknown assailants was done in a drinking-bar and in self-defence or under provocation.”
-PER J. T. TUR, J.C.A
“SELF-DEFENCE” AND “DIGNITY” – MEANING OF THE TERMS “SELF-DEFENCE” AND DIGNITY
“Self-defence of any person from unlawful violence where the force employed or used is not to such extent and circumstances as are reasonably necessary is permitted under Section 33(1)(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999.
Moreover, Section 34(1) of the Constitution (supra) further provides that, “Every individual is entitled to respect for the dignity of his person”
The word “dignity” means “1. The state of being noble; the state of being dignified. 2. An elevated title or position. 3. A person holding an elevated title; a dignitary. 4. A right to hold a title of nobility, which may be hereditary or for life.” See Black’s Law Dictionary (supra) page 522. -PER J. T. TUR, J.C.A
CRIMINAL LAW AND PROCEDURE HOMICIDE – CIRCUMSTANCES WHEN HOMICIDE IS EXCUSABLE
In Rex vs. Rose (1884) 15 Cox C.C. 550, Lopez, J., (as he then was) held as follows:
“Homicide is excusable if a person takes away the life of another in defending himself, if the fatal blow which takes away life is necessary for his preservation. The law says not only in self-defence such as I have described may homicide be excusable, but also it may be excusable if the fatal blow inflicted was necessary for the preservation of life. In the case of parent and child, if the parent has reason to believe that the life of a child is in imminent danger by reason of an assault by another person, and that the only possible, fair, and reasonable means of saving the child’s life is by doing something which will cause the death of that person, the law excuses that act. It is the same of a child with regard to a parent; it is the same in the case of a husband and wife. Therefore, I propose to lay the law before you in this form: If you think, having regard to the evidence, and drawing fair and proper inferences from it, that the prisoner at the bar acted without vindictive feeling towards his father when he fired the shot, if you think that at the time he fired that shot he honestly believed, and had reasonable grounds for the belief, that his mother’s life was in imminent peril, and that the fatal shot which he fired was absolutely necessary for the preservation of her life, then he ought to be excused, and the law will excuse him, from the consequences of the homicide. If however, on the other hand, you cannot come to that conclusion, if you think, and think without any reasonable doubt, that it is not a fair inference to be drawn from the evidence, but are clearly of opinion that he acted vindictively, and had not such a belief as I have described to you, or had not reasonable grounds for such a belief, then you must find him guilty of murder.”
-PER J. T. TUR, J.C.A
LAW OF EVIDENCE HEARSAY EVIDENCE – INSTANCES WHEN EVIDENCE OF A STATEMENT MADE TO A WITNESS BY A PERSON WHO IS NOT HIMSELF CALLED AS A WITNESS MAY OR MAY NOT BE HEARSAY
Pw5 is a prosecution witness with a likely interest to serve. The learned trial Judge ought to have regarded the evidence of this witness with great caution. See Idahosa & Ors. vs. The Queen (1965) NMLR 85 at 87-88. In Omisade vs. Queen (1964) NMLR 67 though a treasonable felony trial, the Supreme Court held at page 75 that:
“Extra-judicial confessions can serve as auxiliary evidence or corroboration of accomplice evidence, and no more.”
Strictly speaking the entire evidence of Pw1-Pw6 as to who stabbed to death the deceased for which the appellant stood trial in the Lower Court is hearsay upon hearsay evidence. In Subramaniam vs. Public Prosecutor (1956) 1 WLR 965 the Privy Council held at page 969 thus:
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”
-PER J. T. TUR, J.C.A
“RETRACTION” – MEANING OF “RETRACTION”
“A trial Judge can convict on only the extra-judicial statement of an accused, confessional in nature and character, even if retracted at the trial.
When an accused denies making a statement to the police which the prosecution seeks to tender to form part of its case, that in law constitutes “retraction.” The word is defined as a “1. Statement saying that something you previously said or wrote is not true 2. the act of pulling something back (of retracting it)..” or it is “1. To say that something you have said earlier is not true or correct or that you did not mean it… 2…” And to refuse to keep an agreement, a promise, etc” is to “retract” from that which the person said or wrote before. See Oxford Advanced Learner’s Dictionary, 8th edition, page 1263. See also Agboola vs. The State (2013) 11 NWLR (Pt.1366) 619 at 646; Eghboghonome vs. State (2001) 2 ACLR 262 at 305; Hassan vs. State (2012) 9 ACLR 1 at 17-18 and Ejinima vs. State (2012) 9 ACLR 24 at 86-87. -PER J. T. TUR, J.C.A
CASES CITED
Frank Onyenankeya vs. The State (1964) NMLR 34,
Metropolitan Properties vs. Lennon (1969) 1 Q.B. 577
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Court of Appeal Rules, 2011
Criminal Procedure Code Law Cap 42, Laws of Borno State, 1994
High Court Law of Borno State, 1994