Saka Oladejo V. The State (1987)
LawGlobal-Hub Lead Judgment Report
NNAMANI, J.S.C.
On 9th April, 1987. I dismissed this appeal and indicated that I would give my reasons for my judgment today. I now give the reasons.
In Charge No. K/22C/81 in the Kano Judicial Division of the Kano State High Court, the following two-count charge was brought against the appellant. They were –
“(1) That you Saka Oladejo on or about the 18th day of December, 1980 at Kurma. Asabe Village in Kano, within the Kano Judicial Division committed the theft of a Volkswagen Car, Registration No. KN 323 KG by taking it out of the possession of Wada Shuaibu Bichi and you thereby committed an offence punishable under Section 287(1)(c) of the Penal Code (As amended by the Penal Code (Amendment No.2) Law 1980).
(2) That you Saka Oladejo on or about the 18th of December, 1980 at Kurma Asabe Village in Kano, within the Kano Judicial Division, committed Culpable Homicide punishable with death in that you caused the death of Wada Shoaibu Bichi by cutting off his head with a knife with the knowledge that his death would be the probable consequence of your act and you thereby committed an offence punishable under Section 221(b) of the Penal Code.”
The facts of the case were that Wada Shuaibu, the deceased was a student at the Kaduna Polytechnic. He came to Bichi in Kano State sometime about 17th December, 1980 on holidays. On the following day, that is 18th December, 1980, Wada left Bichi for Kano for a business and also to see some of his friends. He told his people that he would return to Bichi in the evening of that day i.e. 18th December, 1980. He drove to Kano in his Volkswagen Car Registration No. KN 323 KG. When he arrived Kano he visited different places to transact business. He also visited the place of work of the appellant herein and he was in fact found driving his car in the company of the appellant on 18th December, 1980. Nothing was heard of him again until a few days after the 18th December, 1980 when his headless corpse was removed from a well in the house of the appellant.
On 19th December, 1980, as per the evidence of the prosecution at the trial, the appellant tried to sell the deceased’s Volkswagen Car to two Plain Clothes Policemen. In the course of investigation too, items of clothing such as a pair of brown sandals, a pair of brown shoes, a big gown and a jumper of lace material, all suspected to be personal effects of the deceased and one Mahmoud Ibrahim Bichi were found in the house of the appellant. Mahmoud Bichi’s clothes found in appellant’s house were among those that Mahmoud had given to the deceased on 16th December, 1980 when he, deceased, left Kaduna for Kano.
The appellant on being arrested made a statement on 28/12/80, received in these proceedings as Exhibit B, to the Police. The appellant was arraigned before Rowland, J. who after a trial in which the prosecution called eleven witnesses and the appellant testified in his defence but called no witness, found him guilty on both charges and sentenced him to the mandatory 15 years imprisonment and 15 strokes of the cane in respect of the 1st charge, and to death by hanging in respect of the second charge. After reviewing the evidence, and considering the law applicable to the facts found, the learned trial Judge had concluded as follows:-
“I do not believe the accused when he said in Exhibit D that he bought a Volkswagen Car from two unknown persons for N800.00. He could neither produce the documents of the car nor could he even produce the Registration numbers of the vehicle. He appeared to me to be a miserable liar caught in a tenter hook and struggling to disentangle himself. The wave of lies he has told in Exhibit D has caught him as the engine and chasis numbers of the car he said he bought from two unknown persons have been proved beyond reasonable doubt from the totality of the evidence before me to be those of the car of the deceased. There is also sufficient evidence before me that the deceased drove the said car to the house of the accused on 18/12/80, parked it in front of the house of the accused at Kurma Asabe, Kano, and the deceased slept in the same room with the accused on that fateful night. It seems to me that the confessions in Exhibit B – the statement of the accused dated 27/12/80 is more consistent with the evidence of the prosecution witnesses in this case. It appeared to me as a statement emanating from a settled mind after the shock and horror of a brutal murder that has been whittled down by the efflux of time. I am satisfied that Exhibit B is a voluntary confession of the accused as it is very consistent with the evidence of the prosecution witnesses in this case”.
The Appellant appealed to the Court of Appeal, but that Court (Wali, Akpata and Babalakin, J.J.C.A.) on 11/6/85 substantially dismissed his appeal – the conviction and sentence on culpable homicide punishable with death were affirmed while the conviction and sentence for theft were disallowed and substituted with conviction for criminal misappropriation. The appellant was sentenced to 3 years imprisonment plus a fine’ of N1,000 or in the alternative a further 2 years’ imprisonment. The appellant then appealed to this Court. Five grounds of appeal were filed in this Court. I do not propose to set all of them down as the argument in the appeal centred around grounds 2, and 4. They were in these terms:
“(2) The Court of Appeal erred in law and misdirected itself when having arrived at the conclusion that there was a sudden fight between the appellant and the deceased as envisaged by the provisions of Section 222(4) of the Penal Code, the Court went further to hold that the sudden fight in the instant case is not the type of sudden fight that reduces the enormity of the offence and that the act of the appellant in beheading the deceased was callous and brutal and indefensible.
Particulars of Error and Misdirection
(i) There was no evidence that the appellant was the one who beheaded and cut off the right arm of the deceased.
(ii) There was no evidence as to when the cutting off of the head and arm of the deceased took place whether it was before or after the death of the deceased.
(iii) There was no evidence on the printed record of proceedings before the Court of Appeal that the appellant acted in a cruel and unusual manner or that he took undue advantage of the situation as envisaged by the provisions of Section 222(4) of the Penal Code.
- The Court of Appeal erred in law and misdirected itself when it held that the defence of an accused person should be considered and weighed seriously in arriving at a decision and that whilst the trial judge had a duty to consider the defence and has a right to believe or disbelieve the same he has no right to ignore or disregard it and that it was therefore palpably wrong for the learned trial judge to have treated Exhibit B as the defence advanced by the appellant and to have purportedly disregarded or given less weight to the actual defence proffered by him in Court and that it was open to a trial judge to come back as the trial judge did in this case to rely on a portion of the testimony of the appellants which he had earlier purported to have disregarded.
Particulars of Error and misdirection:
(i) The learned trial Judge considered and weighed the testimony of the appellant before reaching the conclusion that the statement which he made to the Police when the matter was fresh in his memory is more consistent with the evidence of the prosecution witnesses.
(ii) The Ascription of Probative value to evidence adduced in a case is the function of a trial Court and the Court of Appeal would not interfere with the decision of a trial Judge on the evidence unless his decision is perverse.
(iii) The learned trial Judge clearly expressed his preference for Exhibit B as opposed to the testimony of the appellant in court.
(iv) The learned trial Judge did not treat Exhibit B as the defence advanced by the appellant but rather stated that the facts contained therein were consistent with the evidence of Prosecution witnesses and that he preferred Exhibit B to the testimony of the appellant in Court which did not contain most of the things stated in evidence by appellant.
(v) The Court of Appeal failed to note that the trial judge had expressed his preference for the prosecution case which included the statement Exhibit B as opposed to the oral testimony of the appellant and that the real complaint of the appellant is whether in such circumstances it is open to the trial judge to pick just one portion of the oral testimony and tie it up or onto part of the statement of the appellant in order to explain what happened in the circumstances of the case.
(vi) It is not open to the Court to reconstruct the stories contained in Exhibit B and the evidence in court which the Court found conflicting in order to ground conviction”
In his copious, but well written brief of argument, learned counsel to the appellant. Mr. Ayodele, identified 6 questions for determination in the appeal. As with the grounds of appeal, I think that it was around questions (a), (b) and (c) that the issues revolved. These questions were inter alia:
(a) Whether the defence of self defence pursuant to the provisions of Section 65(b) of the Penal Code put up by the appellant in this case is limited by the provisions of Section 62 of the Penal Code in view of the facts established by the evidence in this case.
(b) Whether the circumstances of this case are such that the learned trial judge could not have invoked the provisions of Section 222(4) of the penal code to hold that the offence committed by the appellant is that of culpable homicide not punishable with death particularly having regard to the discovery of the corpse in the well where the appellant dragged it, without the head and the right arm 10 days after appellant dragged it there.
(c) Whether having regard to the fact that there are some differences in what the appellant said in his statement to the Police under caution Exhibit B and his oral testimony in court, it is open to the learned trial judge to determine what weight to be attached to the evidence of the appellant having regard to the inconsistency shown in the two versions of the same event described by the appellant”
In oral argument before this Court, Mr. Ayodele on grounds 2 and 5 complained that the fact of the decapitation of the deceased was used by the two lower Courts to draw the inference that appellant went beyond what was permitted by Section 62 of the Penal Code and cannot avail himself of the defence of self defence in Section 62 and 65(a)(b) of the Penal Code. He contended that there was no evidence that the decapitation was done by the appellant. He also complained that the evidence of the decapitation was used to eliminate a defence under Section 222(4) of the Penal Code. He referred to the cases of Stephen Oji v. The State (1961) N.R.N.L.R. 93. 99: Laoye v. The State (1985) 2 N.W.L.R. (pt 10) p. 832, 843. Mr. Ayodele submitted that after the trial judge had accepted Exhibit B, it was not open to him to go back to the testimony and he referred to Isaac Stephen v. The State (1985) 5 N.W.L.R. (pt. 46) 978, 1000, 1001 per Karibi Whyte, J.S.C. Finally, as to the view of Akpata, J.C.A. that it was by the decapitation of the deceased that appellant “made sure of death” Mr. Ayodele referred to R. v. Igwe 4 W.A.C.A. 117, 118 and R. v. Cyril Church 49 C.A. R. 206, 214. The Acting Director of Public Prosecutions of Kano State, Aliyu Umar relied on his brief of argument in which he put up a fitting defence of the verdicts of the two lower courts.
I think it would be useful to consider first the complaint that the learned trial Judge accepted Exhibit B and later took portions of the sworn testimony in Court which he had disregarded to arrive at a conviction. There was also the further complaint that the Court of Appeal not only endorsed this procedure but wrongly rebuked the learned trial judge for accepting Exhibit B as the defence of the appellant, disregarding appellant’s testimony in court. This is the substance of ground 4 of the grounds of appeal.
In its judgment, the Court of Appeal (per Akpata, J.C.A.) said at pp. 18/19 of the record-
“It (the statement of an accused person) may also be used by the prosecution to discredit him if he adopts a different line of defence contrary to his assertion in the statement. It was therefore palpably wrong for the learned trial Judge to have treated Exhibit B as the defence advanced by the appellant and to have purportedly disregarded or given less weight to the actual defence proferred by him in court. The redeeming feature is that the learned trial Judge came round, and rightly I think, to make use of the vital piece of evidence of the appellant’s testimony in court necessary for the just determination of the case. In the circumstances of this case I do not agree with learned counsel for the appellant that it was not open to the trial judge to come back as he did to rely on a portion of the testimony of the appellant which he purported to have disregarded”.
It does seem clear from the records that the learned trial Judge at one point accepted only Exhibit B but later on went back to make use of appellant’s testimony in court. He was there concerned on how to reconcile Exhibits B and D, the appellant’s statements to the Police, with his inconsistent testimony in court. I am not too sure that the Court of Appeal was adverting to that same problem in the passage I have just set down. At p.64 of the Record, the learned trial Judge said-
“The accused said so many things in his evidence in court which are quite different from the contents of Exhibit B and Exhibit D his statements when the matter was still fresh in his memory. It has been held that where a witness has made a previous statement in distinct and direct conflict with his testimony at the trial the probative value of such testimony is negligible and the court should not base its verdict on it. The State v. Usor (1972) N.M.L.R. 211: R v. Harris (1977) 20 Cr. App. R. 148. 149”
He later on accepted Exhibit B as a “voluntary and confessional statement of the accused”. Later in considering the defences available to the appellant, he said at p. 71-
“Exhibit B was made when this matter was still very fresh in the mind of the accused, and in the said Exhibit B the accused stated that he ran to the parlour when the accused fell with the knife (Exhibit E) in his hand and could not get up. How, then did he come about stabbing the accused on the stomach and making sure that he was dead as he said in his evidence when he had already known that the deceased was on the ground and “could not get up”
Before considering the law on the issue of inconsistency between the statement and the testimony in Court, it is necessary to examine relevant portions of the record. In Exhibit B the salient portions are as follows:-
“The deceased by name Wada Shuaibu Bichi Town has been my friend since 1978…….When we got to my house, he told me that there are some problems around WAPA area which people are making. He said that he would not go back to Kaduna that day, until the second day. On that 18th December, 1980 he said he was travelling to Kaduna. He said he was going to sleep with me that day. In the morning of the following day when I woke up he was still sleeping. Before he got up, I was already preparing to go to my shop. Before that time, every body in our compound has gone to their respective working places. He later got up from sleep, and asked me whether the people in the yard have gone to work. I said ‘Yes’…………At that time, I was standing at the side of my table. He got up and closed the door. I started asking him why he should close the door while we are preparing to go out. He then told me that he want to sex me, I said “why” ‘am I a woman’ He said whether I like it or not I must agree otherwise, he was going to kill me. I told him so that is why you have been calling me a handsome boy As I was saying that, he brought a knife out of his body. He started struggling to kill me. I started shouting but nobody came. He was demonstrating with the dagger to stab me with it and I was defending myself with my hands.
…………………As I wanted to open the door and escape, he wanted to hit me against the wall at my back with the knife I dogged him and pushed him with the knife in his hand. As I pushed him away, he fell with the knife in his hand. Before that time I had already sustained some injuries at my palm and I was trying to remove the knife from his hand. When he fell with the knife,I opened the door and ran to the parlour. At that time, he could not get up.
……. When I saw that he was dead with the knife in his hand.
I was very surprised and I started crying…………………………………..
I started thinking on what to do with crying, because I do not want people to know that this type of thing has happened to me.I held the legs of the deceased and drew him to the well and kept him inside the well. I need something to cover him there. I do not want people to see his vehicle there hence I removed the two plate numbers.”
Portions of his testimony in court are as follows:-
“I know one Wada Shuaibu Bichi………Wada Shuaibu is now dead on 18/12/80……………….
I noticed that he went to the door and locked it. I asked him why he closed the door and he told me that he wanted to make a request to me. He told me that he would like to have sex with me through the anus……………..
The deceased then attacked me with a knife. The knife belonged to the deceased and it is the knife produced in court Exbihit E. I shouted and the deceased told me that he would kill me since I refused that request. I had a knife cut on my hand. When I noticed that he was about to kill me I grabbed the knife from him. I had another cut on my head. I continued to shout and wanted to remove the knife from his hand. I had some knife cuts on my hand when I engaged in a struggle with him. The knife broke into two Exhibit E, then in my possession. The deceased then pushed me to the bed hold my neck and pressed my private part. I then used Exhibit E to stab the deceased on his stomach I jumped up and fell down. The deceased started rolling on the ground and I made sure that he was dead. I then removed the key of my room from the pocket of the deceased”
It seems very obvious that there is serious conflict in the material portion of the two statements. In Exhibit B the deceased fell with a knife in his hand and later died. In his testimony in court, the appellant gave a dramatic picture of the encounter. The deceased not only, cut him with Exhibit E on his hand and head, but held his private parts. He then stabbed the deceased with the broken part of Exhibit F. As the deceased was rolling on the ground he, appellant made sure he was dead. Contrary to the conclusion of the learned trial Judge, the law is rather that where a witness (here an accused person) makes a statement which is inconsistent with his testimony such testimony is to be treated as unreliable while the statement is not regarded as evidence upon which the court can act. In R v. Gold (1960) 1 W.L.R.1169, 1172 Lord Parker C. J. in the English Criminal Court of Appeal stated it thus:
“In the judgment of this Court when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable, they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act.”
This case was followed by this Court in Queen v. Ukpong (1961) 1 All N.L.R. 26 per Taylor F.J.; Jizurumba v. The State (1976) 3 S.C. 89 per Idigbe J.S.C. Williams v. The State (1975) 9/11 S.C. 139. In the recent case of Stephen v. State (1986) 5 N.W.L.R. (pt. 46) 978 at 100 Karibi-Whyte, J.S.C. reiterated the same principle. In such cases the trial Court would be entitled to reject the inconsistent defences and rely on the evidence adduced by the prosecution. It would seem to me that the reliance which the learned trial Judge placed on R v. Harris was wrong as that case has certainly been overtaken by the more recent case of R v. Golder. In the face of the Law as it stands it would not be open to the trial court to accept the statement of the accused person and then go on to take portions of his testimony in court. To the extent that the Court of Appeal supported this, it seems to me they were in error.
The question is if the contention of the appellant on this is accepted would it entitle the appellant to freedom Or put differently if Exhibit B and the appellant’s testimony in court are excluded is there any evidence on the record on which the appellant could have been convicted. It is agreed that there was no eye witness to the incident and that the evidence was circumstantial. The only details about the encounter were contained in Exhibit B and appellant’s testimony in court both of which are inconsistent and therefore unreliable. From the evidence led by the 11 prosecution witnesses there can be no doubt that guilt pointed to the appellant. The deceased was last seen alive with him driving in a Volkswagen Car. Some days later the decapitated body of the deceased was dragged out of a well near the appellant’s house. The very Volkswagen Car in which appellant and the deceased rode was seen parked near the house of the appellant after he had been arrested. In his statement Exhibit D, appellant confessed that he had attempted to sell the said Volkswagen Car to two prospective buyers who later turned out to be plain clothes policemen. Although he earlier claimed that he bought that same car from a salesman for N800 he could neither produce the salesman nor any documents supporting the sale. Indeed the Volkswagen Car was the property of the deceased and it was on the same 18/12/80 that the deceased was murdered that appellant claimed he bought the vehicle from a salesman. In that same Volkswagen Car was discovered a dagger with blood stains. The wearing apparel of the deceased were found in his house when it was searched by Police. It has long been settled that circumstantial evidence is often the best evidence. To ground a conviction it must be unequivocal, positive and point irresistibly to the accused person. As I observed in Joseph Lori & Anor v. The State (1980) 8-11 S.C. 81, 86;
‘”The circumstantial evidence sufficient to support a conviction in criminal trial especially murder, must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the prisoner and no one else is the murderer. The facts must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”
Who else but the appellant had the opportunity to kill the deceased Who else could have decapitated him and thrown him into a well near the appellant’s house Why was the appellant trying to sell the deceased’s Volkswagen car the same day he was killed How did the blood-stained dagger found in the Volkswagen Car which the appellant admitted in Exhibit D that he put there come about Finally, what were the deceased’s wearing apparel and those of deceased’s friend doing in appellant’s house
There is no doubt that the evidence of the prosecution raise a strong circumstantial evidence pointing to the appellant’s guilt. In the light of this conclusion it would really be unnecessary for me to consider all the contentions with regard to Section 62, 63, 65 and 222(4) of the Penal Code. I would only wish to say that I do agree with learned Deputy Director of Public Prosecutions that the distinction which the Court of Appeal drew between self defence under the Penal Code and under Section 286 of the Criminal Code is untenable. If R v. Igwe (Supra) was applicable in this case it would have been so notwithstanding that provisions of the Penal Code were involved. There is nothing in the evidence of the prosecutions from which a defence of self defence under Section 65 of the Penal Code can be sustained. Nor is there anything in that evidence from which one can see whether there were circumstances in which sudden fight under Section 222(4) of the Penal Code would have been considered. Perhaps the contents of Exhibit B would have given some indication in that direction, but that statement had to be discarded. In any case since it is my view on the circumstantial evidence available that only the appellant could have decapitated the deceased.
No defence under Section 222(4) of the Penal Code would have been available for even if there was a sudden fight it cannot be said that the appellant did not take undue advantage of the deceased or that he did not act in a cruel or unusual manner. Stephen Oji v The State (Supra); Also State v Okonji (1987) 1 N.W.L.R. 659, 674.
It would be taken that the Court of Appeal was adverting its mind to circumstantial evidence when Akpata, J.C.A. said at page 24 of the record-
Having regard to the state in which the corpse of the deceased was found there is no doubt that he (appellant)” made sure he was dead” by decapitating him and cutting off his right arm”
Mr. Ayodele made heavy weather of the point that there was no evidence to show whether the decapitation was ante or post mortem. I do not think that it is really relevant. For as the Court of Criminal Appeal in England decided in the case of R v. Cyril Church (Supra) to which he referred, if the decapitation can be said to be part of a series of acts all intended to cause the death of the victim it would not matter whether it was post or ante mortem.
In the Cyril Church case, the victim had multiple injuries before the accused person believing her dead, threw her into a river. She died by drowning. The point was made that ‘if she was already a corpse at the time she was thrown into the river, only manslaughter would be involved.
The jury, the court held, ought to have been directed that they ought to have regard to the conduct of the accused in relation to the victim as constituting a series of acts which culminated in her death and if they saw the accused’s behaviour that way, it mattered not whether he believed her dead or alive when he threw her into the river.
In the instant case if the behaviour of the appellant is considered in relation to the deceased, and one considered the series of acts culminating in his death. it would be immaterial whether the decapitation was ante or post mortem.
It was for all these reasons that I dismissed the appellant’s appeal as hereinbefore mentioned.
SC.79/1986
