Abdulrahaman Yusuf V. Federal Republic Of Nigeria (2010)
LawGlobal-Hub Lead Judgment Report
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
This is an appeal against the judgment delivered on 10/1/2008 by the High Court of the Federal Capital Territory, Abuja presided over by Honourable Justice M.M. Dodo convicting the Appellant of the offence of culpable homicide not punishable with death under Section 222 (2), (4) and (7) of the Penal Code and punishable under Section 224 of the same law. The Appellant upon his conviction was sentenced to a term of imprisonment for 5 years. The said High Court of the Federal Capital Territory, Abuja will hereinafter simply be referred to as “the lower court”.
The facts of the case are that the Appellant alleged that one Mathew Micheal Tyokuwa owed him one hundred and fifty Naira only. The sum of money was the amount the Appellant charged a customer for the repair of an umbrella but which repairs the Appellant allowed the said Mathew Micheal to carry out. Mathew Michael Tyokuwa pocketed the money paid by the customer and the subsequent demand for the money by the Appellant on 17/9/2005 led to a fight between the two of them. The Appellant eventually stabbed Mathew Michael Tyokuwa and he died at the scene of the fight.
A charge of culpable homicide punishable with death under Section 221(b) of the Penal Code was subsequently proffered against the Appellant in respect of the death of Mathew Michael Tyokuwa. The lower court having the benefit of the evidence adduced by the prosecution through the 3 witnesses it called and the evidence proffered by the Appellant in his own behalf found the Appellant guilty of the offence of culpable homicide not punishable with death. The Appellant was sentenced to five years imprisonment as earlier stated.
The Appellant being dissatisfied with his conviction and sentence appealed against the judgment of the lower court by an undated Notice of Appeal filed on 10/4/2008. The Appellant with the leave of this Court later filed additional grounds of appeal. The Notice of Appeal contains one ground of appeal; while two additional grounds of appeal were filed by the Appellant. The sole ground of appeal in the Notice of Appeal shorn of its particulars read: –
- ERROR IN LAW
The judgment of the lower court is unreasonable and unwarranted and cannot be supported having regard to the evidence.
The two additional grounds of appeal shorn of their respective particulars
GROUND 1
The learned trial judge erred in law and proceeded on wrong principles of law when he held that the defence of self-defence did not avail the Appellant and convicted him of manslaughter.
GR0UND 2
The learned trial judge erred in law in holding that ‘Exhibit A’ was a confessional statement of the Appellant and proceeded upon wrong principles of law to convict the Appellant.
In compliance with the rules of this Court, parties duly filed on 24/9/2008 but deemed as properly filed and served on 26/3/2009 was settled by sam T. Ologunorisa Esq., while the respondent’s brief of argument dated 3/4/2009 and filed on 6/4/2009 was settled by Samuel Zibiri Esq. The appeal was entertained on 29/10/2009 and learned lead counsel for the parties relied on and adopted the briefs of argument filed on behalf of their respective clients.
The three (3) Issues which the Appellant formulated for the determination of the appeal in his brief of argument are: –
(i) Whether in the circumstances the defence of self-defence avails the Appellant and the effect of the availability of the defence on the judgment of the lower court.
(ii) Whether the Lower Court after finding that the defence of self-defence availed the Appellant did not err on law when it turned round and proceeded to find the Appellant guilty of the offence of manslaughter arising from the same facts
(iii) Whether the Learned trial judge erred in holding that Exhibit ‘A’ was a confessional statement of the Appellant and proceeded upon wrong principles of law to convict the Appellant.”
The Respondent formulated one (1) Issue for the determination of the appeal in its brief of argument. The said issue according to the Respondent court. The Issue reads:-
The appeal will be decided upon the Issues formulated in the Appellant’s brief and which issues are said to have been distilled from the grounds of appeal .I will however consider the three Issues together.
APPELLANT’S ISSUES 1, 2 AND 3
The Appellant having referred to the observation of the lower court in relation to the defence of self-defence; the evidence of the Appellant; and that of PWs 1 – 3, said that a certain sequence of events which are uncontradicted is discernible. These are: (i) there was a heated argument between the deceased and the Appellant; (ii) the heated argument resulted in a fight between the deceased and the Appellant; (iii) the deceased went away and later returned with an iron instrument; (iv) the deceased intended to cause grievous bodily harm to the Appellant.; (v) the Appellant over powered the deceased and stabbed him; (vi) the deceased died as a result of injuries sustained from the attack by the Appellant. This sequence of events the Appellant said are not disputed by his own evidence or the evidence of PWs 1-3. The Appellant submitted that admitted facts need no further proof and cited ,in support the cases of Ibadan Local Government Properties Ltd v Okunade (2005) All FWLR (Pt.271) 154; Igali v. Lawson (2005) All FWLR (Pt. 262) 563; Mozie v. Mbamalu (2006) All FWLR (Pt. 341) 1200- and Amadi v. Acho (2006) All FWLR (Pt 334)1949.
The Appellant raised the posers as to whether he was not entitled to defend his person and the force required in the heat of the struggle in the light of the above stated facts. Referring copiously to his evidence the Appellant stated that he was entitled to defend his life from the deceased who was the aggressor and that he did not exceed the measure of defensive action expected of a reasonable man in the circumstances of the case .The case of Ahmed v. The State (2001) All FWLR (Pt. 34) 273 was cited in support. The Appellant submitted to the effect that under the Nigerian Criminal Law he can properly claim the defence of self-defence where he admits that he did the act which caused the death of the deceased but that he was justified in doing so to protect his own life as he would have been killed or was in such fear when he committed the act. The Appellant said that he disclosed in his evidence that he honestly believed his life was in danger. The Appellant further said to the effect that he had no opportunity to withdraw from the fight between him and the deceased and had to do something to repel the grave attack which could have cost him his life. It is the submission of the Appellant that the finding of the lower court that he could have disengaged from the attack was faulty. The case of Uwaekweghinya v. State (2005) All FWLR (Pt. 259) 1928 – 1929 was cited in aid. The Appellant again submitted to the effect that where he is in apprehension of his life, he is entitled in law to defend himself even if it means killing the deceased with the very weapon he had wanted to kill him. The case of Nwobe v. The State (2000) FWLR (Pt. 4) 707 was cited in aid. The Appellant further submitted to the effect that the conclusion reached by the lower court that his action in relation to the deceased exceeded self-defence was wrong having regard to the facts of the case.
It was equally submitted by the Appellant that the defence of self-defence is not negated by the death of the deceased even where this is a probable consequence of his act. In this regard reliance was placed on the provisions of Sections 59; 60 (a) and (b) and 342 of the Penal Code. It was submitted that the acts of the deceased in the circumstances of this case amounted to criminal trespass under the Penal Code. The case of Apugo v. State (2006) All FWLR (Pt. 341) pages 1269-1270 was also cited in aid. The Appellant urged that it be resolved in his favour that the defence of self-defence was available to him and consequently that he be discharged and acquitted.
Dwelling on Exhibit ‘A’ the Appellant in the main submitted that the said Exhibit is not a confessional statement because if he (i.e. Appellant) killed the deceased in self-defence, the killing of the deceased in the circumstance amounted to an excusable homicide and cannot be unlawful and it was not unequivocal in that it does not lead to the guilt of the Appellant. That it is capable of two lower court ought to have given the Appellant benefit of the doubt in the circumstance. The case of Solola v. State (2005) All FWLR (Pt. 269) 51 was cited in aid. Lastly the Appellant submitted to the effect that Exhibit ‘A’ could not be a confessional statement because it was not unequivocal in that it does not lead to the guilt of the Appellant. That it is capable of two interpretations in the realm of guilt or non-guilt of the Appellant and that the lower court ought to have given the Appellant benefit of doubt in the circumstance. The case of Solola v. State (2005) All FWLR (Pt 269) 51 was cited in aid. Lastly the Appellant submitted to the effect that Exhibit ‘A’ is not a confessional statement as all that he did therein was to explain how the deceased attacked him and how he had to defend himself. The case of Uwaekweghinya v. State (supra) was cited in aid. It was submitted that the lower court was therefore wrong to have relied on Exhibit A in convicting the Appellant of the offence of manslaughter. This according to the Appellant is because the effect of Exhibit A not being confessional is that the prosecution has thereby failed to prove its case beyond reasonable doubt.
In the Respondent’s brief of argument it was stated that the onus on the prosecution in criminal cases is for it to establish all the elements of the offence charged, before it can be said that it has its case beyond reasonable doubt. It was submitted that in the instant case the prosecution proved the charge against the Appellant beyond reasonable doubt. The Respondent said the prosecution did this, by the evidence of its three witnesses and exhibits particularly the iron admitted and marked as Exhibit F at the lower court .The Respondent submitted that even though the prosecution called no eyewitness to the incident at the trial, no one was however left in doubt from the circumstances of this case; statement of the Appellant; and his testimony in court that it was the act of the Appellant in stabbing the deceased that caused the death of the said deceased and that the Appellant knew that the death of the deceased was the probable consequence of his act.
It is the submission of the Respondent that the defence of self-defence and or private defence do not avail the Appellant. In this regard the Respondent said that the Appellant made two contradictory statements and also retracted or resiled from the statements while giving evidence. It was submitted that it is trite law that where a witness made contradictory statements the court cannot choose which of the statements to rely upon. That the court, likewise would not rely on the extra judicial statement of the witness and will equally disregard his evidence. That however where the statement is confessional, even though the accused person resiles therefrom, the court can still rely on the said confessional statement and convict the accused on it. The cases of Emeka a V State (1998) 7 NWLR (Pt. 509, 556 at 578; Ogunye v. State (1999) 5 NWLR (Pt. 604) 548 at 570; and Egboghonome v. State (1993, 7 NWLR (Pt. 306, 383 at 432 were cited in aid. The Respondent said that the Appellant did not deny making his statement when it was tendered but only resiled from it when testifying.
It is also the submission of the Respondent that the lower court rightly held that the Appellant was not entitled to the defence of self-defence because the Appellant exceeded his right to self-defence and was properly convicted of the offence of manslaughter or culpable homicide not punishable with death Dwelling on the right of private defence, the Respondent said that the Appellant was lucky to have been convicted for the offence of culpable homicide not punishable with death. That in any event, the Appellant did not testify to facts upon which the defence can be predicated.
The written statement of the Appellant admitted and marked Exhibit ‘A’ at the lower court, having regard to the Record of Appeal is the statement at pages 19-22 thereof. Though it is apparent that objection was taken to the admissibility of the statement when it was sought to be tendered on the ground that the person through whom it was being tendered (i.e. PW1, was not the maker or the confirming authority, the lower court still admitted the same in evidence. This the lower court did after it had put questions to the Appellant and elicited answers which convinced the said court the Appellant did not deny making the said statement. It is however to be noted that it was not through the Appellant that the prosecution sought to tender the statement in question. Apart from Exhibit ‘A’, the following were admitted in evidence by consent of both learned counsel for the prosecution and Appellant at the lower court. They are: (i) medical report in respect of the deceased – Exhibit ‘B’: two photographs – Exhibits ‘C’ and ‘D’ one negative – Exhibit ‘E’ and one sharp iron allegedly used by the Applellant – Exhibit ‘F’.
The charged preferred against the Appellant and for which he was tried before the lower court is that of the commission of the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code. In the charge, the Appellant is alleged to have caused the death of one Mathew Michael Tyokuwa on or about 17/9/2005 by stabbing him with a sharp object knowing fully well that the death of the deceased would be the probable consequence. The law reports are replete with authorities in relation to the ingredients and each of which the prosecution must establish beyond reasonable doubt to sustain a charge of culpable homicide punishable with death. The ingredients are:-
- that the death of a human being has actually occurred or taken place;
- that such death has been caused by the accused;
- that the act of the accused was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act.
See ADAVA V. STATE (2006) ALL FWLR (PT. 311) 1777 AT 1787 – 1788.
The Appellant has argued that Exhibit ‘A’ is not a confessional statement. Though the Respondent did not expressly respond to the submissions of the Appellant that the Exhibit ‘A’ is not confessional, it would however appear to have argued indirectly that it is, given the totality of the submissions in its brief of argument.
Now what is a confessional statement? In the case of SHANDE V. STATE (2005) All FWLR (Pt. 279) 1342 at 1353 “confession” is said to mean “an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime.” See also MOHAMMED V. STATE (2007) ALL FWLR (Pt. 383) 46. It can therefore be safely said that a confessional statement is one in which a person charged with the commission of a crime, admits by stating or suggests the inference that he committed the crime.
In other words for a statement to qualify as a confessional one, the maker must therein admit committing the ingredients of the offence with which he is charged or suggesting the inference that he committed the ingredients of the offence. This is why a confessional statement that satisfies the requisite conditions for its admissibility in that it is voluntarily made and properly proved can properly sustain the conviction of the maker. See Section 27 of the Evidence Act, Cap. 112 LFN 1990 for the conditions to be satisfied before a confessional statement can be admitted in evidence. See also the cases of NWACHUKWU V. THE STATE (2007) ALL FWLR (PT.390) 1380; and NWOBE V. THE STATE (2000) 15 WRN 133 at 141.
I have painstakingly read the statement made to the Police by the Appellant and which was admitted as Exhibit ‘A’ at the lower court. Therein the Appellant is disclosed as having given an account of himself including his background. He is also recorded as having given an account of how he came to be working at Abattoir, Garki where the incident of 17/9/2005 occurred and how the deceased came there and ended up learning the umbrella repair vocation. With specific reference to the incident of 17/9/2005 the Appellant is recorded as having said thus: –
” On Saturday 17th Sept. 2005 one of my customers brought an umbrella for me to repair for him. (He) Mathew Michael asked me whether I will give him to repair it, since he know (sic) how to do it I agreed and I charged the man N1,000.00. After he finished repairing the umbrella the man gave him the money N1,000 00 when the customer left, I called Mathew Michael and asked him about the money. He told me that he had already spend (sic) the money remaining only N150.00, he refused to give me. I called my friends and told them that this boy Mathew Michael is not respecting me and I don’t want to see him at my place. They told me that I am the one staying with him. I am the one who can decide on whether he will stay or not I told Mathew to park his tools and leave my place. He refused and told me that he is not going to anywhere (sic). He told me that Abuja is not my State. I can’t pursue him from that place. I asked him to give me my tools with him. He refused to give me. From there I started dragging with him. He was holding the tools in his hand, and I am trying to collect my things. Later people came and separated us. He said he will not leave until he revenge (sic) what I have done to him. He later came back with one sharp object trying to wound me. He also bite (sic) me on my right finger. I was struggling to collect the thing (object) from him When I collected the iron, I stabbed him on his ribs by the right side. Then he felled (sic) down and I also grabbed him; I removed my shirt and covered the place, not to allow breeze to enter the place. I called people to assist me, but nobody came. I was there when OC Abbatoir (sic) police station came, I was handcuffed and Mathew was taken to Hospital, I was told later that Mathew died before reaching the hospital. I used my hand to stab him (sic) by accident, I did not intend to killed (sic) him. I was later brought to Garki police station and later to SCID. This is all I have to say.”
There is nothing in Exhibit ‘A’ that shows that the Appellant admits the commission of the ingredients of the offence of culpable homicide punishable with death for which he was charged before the lower court; or suggesting the inference that he admits the commission of the ingredients of the said offence. He cannot therefore be said to have confessed to the commission of the offence of culpable homicide punishable with death having regard to the ingredients of the said offence. Indeed, the Appellant in Exhibit ‘A’ not only put up the defence of self-defence by portraying that he’ stabbed the deceased during a struggle initiated by the deaceased but clearly stated that he stabbed the deceased by accident and that he did not intend to kill him. In the circumstances, I find the submissions of the Appellant that Exhibit ‘A’ is not a confessional statement and the reliance on the case of Uwaekweghinya v. State (supra) in this regard to be very sound or unassailable.
The Respondent in its brief has correctly stated the position of the law as it relates to confessional statement of an accused and non-confessional statement of an accused. In this regard, the law is settled that a confessional statement of an accused person where it is voluntary and properly proved and admitted in evidence constitutes part of the evidence of the prosecution which a trial Judge is bound to consider its probative value. The retraction of a confessional statement by an accused given its nature does not call into place the inconsistency rule. See the cases of EGBOGHONOME V THE STATE (1993) 9 SCNJ 1; and NWACHUKWU V THE STATE (supra) at 1410.
However when the statement made by an accused person to the police during investigation is not confessional in nature; and the accused at trial gives evidence that is inconsistent with the same, the position of the law is that such evidence should be regarded as unreliable and the evidence ignored unless satisfactory explanation is provided for the inconsistency See JOHN AGBO V. THE STATE [2006] All FWLR (Pt.309) 1380; and NWANKWOLA V. STATE (2006) All FWLR (Pt.339) 801. The court also cannot make use of the statement to the police made by an accused if it is inconsistent with his testimony in court. See ARCHIBONG V THE STATE (2006) All FWLR (Pt. 323) 1747.
The prosecution called three witnesses at the trial of this case before the lower court. PW1 – Captain (sic) Ayuba Bala a policeman testified that he was detailed to investigate a case of culpable homicide against the Appellant, He however made it clear in his evidence that he was not the one that recorded the statement made to the police by the Appellant and which statement as earlier stated was admitted through this witness and marked Exhibit ‘A’. he gave the name of the policeman that did this as Anthony (now deceased). Under cross-examination the witness admitted amongst others that he never witnessed the incident involving the Appellant and that he knew what transpired between the Appellant and the deaceased from the statement of the Appellant which was recorded by PC Anthony. He equally disclosed the sharp iron allegedly used by the Appellant and which was admitted in evidence and marked Exhibit ‘F’ was recovered by one Adegbe Martins DSP PW2 – Martins Adegbe DSP in his evidence in chief disclosed that it was after the incident that involved the Appellant and deceased had occurred that he got to the scene and that on getting to the scene he arrested the Appellant and also took a sharp iron object which he saw there. Under cross-examination the witness said that the deceased was not breathing when he got to the scene and he therefore assumed that he was dead.
PW3-Nguetyo Uke in his evidence equally disclosed that he never witnessed what transpired between the Appellant and the deceased but that he got to the scene to find the deceased already dead. He also disclosed that he saw an iron object with the policemen who came to the scene and was told by them that it was what the Appellant used in stabbing the deceased.
The Appellant has argued to the effect that but for the wrongful reliance on Exhibit ‘A’ as a confessional statement (and which did not avail him of the defence of self-defence) by the lower court, the prosecution has not proved the offence with which he was charged beyond reasonable doubt.
I cannot but agree wholly with the Appellant that the evidence adduced by the prosecution as highlighted above at the best only established the fact of the death of Mathew Micheal Tyokuwa. No evidence at all was adduced by the prosecution to show that the Appellant and the deceased had anything to do with each other on 17/9/2005 talk less of establishing any act of the Appellant that caused the deceased any injury that result in his death. A medical report was tendered with the consent of both learned counsel for the Appellant and the prosecution and marked Exhibit ‘B’ and the sharp iron allegedly used by the Appellant was equally tendered with the consent of the aforementioned learned counsel and marked Exhibit ‘F’. There was no evidence adduced by the prosecution linking Exhibit ‘F’ with the Appellant; also no evidence was adduced linking any wound or injury on the deceased with the sharp iron. Given these observations I simply do not see any evidence adduced by the prosecution showing that the death of the deceased was caused by the Appellant; and the act done by the Appellant with the intention of causing the death of the deceased or which the Appellant knew that death would be the probable consequence.
The burden of proof in criminal trials basically is for the prosecution to establish its case against the accused person beyond reasonable doubt and there is no doubt that the prosecution can discharge this burden by relying on the confessional statement of the accused person voluntarily made by him and properly proved. See IGABELE V. THE STATE (2006) ALL FWLR (PT.311) 1797.
Having painstakingly perused the judgment of the lower court, I am not in any doubt that what the said court relied upon in convicting the Appellant was basically Exhibit ‘A’ which the court took as a confessional statement and which as I have hereinbefore said is not. The lower court in even relying on Exhibit ‘A’ in convicting the Appellant it would appear never saw the need to resolve the discrepancies in the testimony of the Appellant in court vis-a-vis the account recorded for him in the said Exhibit as it pertained to the incident of 17/9/2005 and yet concluded that the defence of self-defence partially availed the Appellant and reduced the offence which he was charged with to a lesser one.
In the final analysis I totally find the submission of the Appellant that the prosecution did not prove the charge preferred against him beyond reasonable doubt to be well founded and that the said court proceeded upon wrong principle of law in convicting him (Appellant) on the basis of Exhibit ‘A’ Issue 3 is accordingly resolved in favour of the Appellant.
By his Issue 1 the Appellant has raised the question of the availability of the defence of self-defence to him in the circumstances of this case, and the effect of the success of the defence on the judgment of the lower court. By his Issue 2 the Appellant questions the correctness of his conviction for the lesser offence of culpable homicide not punishable with death after the said court had found that the defence of self -defence availed him.
I need to observe that these two Issues would appear not to be relevant any more given my earlier conclusion that the prosecution did not prove the offence it preferred against the Appellant beyond reasonable doubt having regard to the evidence of the three witnesses it called at the trial and the Exhibits tendered. In order words the Issue whether or not a defence relied upon by an accused person avails him is only necessary for resolution in an appeal, if the prosecution is found to have discharge the burden of proof on it of proving the charge against an accused beyond reasonable doubt. It is only then that the question need be resolved as to whether the accused who has a duty to establish reasonable doubt has established such a defence on a balance of probability. Issues 1 and 2 therefore admit of the correctness of the finding of the lower court that the prosecution proved its case beyond reasonable doubt.
This is what the lower court said at pages 139 – 140 of the Records concerning the defence of self-defence raised by the Appellant: –
“8. That this court has distant (sic) itself with the defence raised by Counsel that the deceased had tried to use the sharp iron on the accused person, before the accused got hold of the object and stabbed the deceased in a bid to give (sic) himself. The testimony of the accused before this court had openly negated this submission of Learned Counsel. On the condition which the decease (sic) was left after being stabbed by the accused person, this court cannot attribute negligence or dereliction to duty totally to the police to what accelerated the death of the decease (sic) because, the PW2 when testifying has told this court on arrival to the scene of the crime that ….” I met the decease not breathing and I assume that he was dead this fact was duly corroborated by the PW3 who in his evidence in Chief had proved this court (sic) that ….”I then saw someone lying (sic) down on the ground whom I identified to be the deceased… “The decease I met was already dead”
- That this court in considering the arguments put forward by the defence Counsel that … the accused acted in self defence when it summarize the whole matter, this court is not wholly accepting the action of the accused to be self defence. Self – defence could be used or considered as a mitigating factor. This position is taken by the court when it filmed back the scenario leading to the scuffle between the accused and the deceased more so when it glanced back at the duty signed confessional statement of the accused to the police he mad (sic) on the 12 October 2007 (sic) where he said …I started struggling with him (the deceased) After the above, this court in rejecting self-defence as a total defence of the accused person has considered that the decease (sic) hadn’t successfully used the alleged sharp iron to stab the accused person. What a reasonable man expect (sic) the accused to do after grabbing the iron from the deceased, he could have fling (sic, it far away from heir position, when the accused however struggle and collected back the sharp iron, his action of immediately stabbing the decease at a sensitive area of his ribs, to me, in that circumstances it will not be fair for the accused to be accorded full benefit of self-defence. Certainly his action at the material time exceeded self defence, I however believe that self-defence could be considered a mitigating factor to affect any punishment to be meted to the accused person.
In view of all the above, having further considered the addresses filed and submission of Learned Counsels coupled with the defence of the accused person against the strength case/evidence adduced by the prosecution, I am of the opinion and hereby found and equally so hold that the prosecution have successfully proved their case against the accused person for the offence of culpable homicide not punishable with death under Section 222(2) (4) and (7) Penal Code punishable under Section 224 Penal Code.
This court in arriving to this position has strongly evaluated all evidence placed before it including the defence of the accused which it is not rejection (sic) in Toto, (sic) but which is partially accepted, it is the belief of this court that the accused did not intend to cause the death of the decease as contemplated by Section 220 Penal Code….”
In the case of Uwaekweghinya v. State (supra) cited by the Appellant the Supreme Court said amongst others that for the defence of self-defence to be available, the accused must show that he reasonably believed that there was no other way of saving himself from death or grievous bodily harm other than by using such force as he did and that he tried to disengage from the event which led to the application of such force. It was further said that where a plea of the defence of self-defence is upheld, it will completely absolve the accused person from criminal liability. See also the cases of APUGO V. THE STATE; (supra); and UWAGBOE V. THE STATE [2008] All FWLR (Pt. 419) 425.
Having regard to decided cases, I do not think the law recognizes a situation of partial success of the defence of self-defence as the lower court clearly portended in the portion of its judgment re-produced above. The lower court having found that the action of the Appellant at the material time exceeded self-defence ought not to have found the defence to have succeeded in any degree whatsoever. And the unsuccessful plea ought not to have been relied upon by the lower court in finding the Appellant of the lesser offence of culpable homicide not punishable with death. The plea of self-defence when raised either succeeds or fails. Where the defence of self-defence succeeds, it justifies or excuses by law the act of the accused that has resulted in his being charged for the killing of any person. Where the plea fails, the accused in the absence of any other defence that has mitigating effect upon the charge preferred against him must be convicted given the establishment of the charge against him beyond reasonable doubt.
Before now, I have re-produced the account of the event of 17/9/2005 as recorded for the Appellant by the recorder of Exhibit ‘A’ who was never called as a witness because he was dead. The Appellant is therein recorded as having said as follows:-
“…He said he will not leave me until he revenge (sic) what I have done to him. He later came back with one sharp object trying to wound me. He also bite (sic) me on my right finger. I was struggling to collect the thing (object) from him. When I collected the iron I stabbed him on his ribs by the right side. Then he fell down…”
In his evidence in chief before the lower court the Appellant is recorded as page 119 of the Record as having said: –
“…on or about 17/9/05 I was a black smith (sic) one boy by name Michael brought an umbrella to me for repairs. I repaired it for him and demanded payment but, the man refused to at Garki Village Abattoir at about 9:00 a.m. at my shop. They went away and came back and I asked if he was not paying me just within 20 minutes when he return (sic) he asked me for his umbrella and told me that he has no money to pay. Then heated argument ensued. I insisted that he must pay me having already repaired the umbrella. We started beating one another. He first beat me he was much bigger. He then ran to his people at Kesten hotel, he then returned with an umbrella object and hit me by my left eye. I then ran and pick (sic) up an iron I was using for my work. This Exhibit F was not the one I used. He ran and pick a 2″ 2″ wood and attempted beating me. All the while happen at the front of my shop in the midst of people. I then said I won’t allow him to kill me I ran and picked up an umbrella pipe and hit him with it, It was the length of my Arm he then staggered to fall down but I supported him back The man fell down and the Car-Washers people (sic) poured water on him He stood up and then my mind calm down seeing him breathing The people there rushed to report the incidence (sic) to the police and I called them to see what is happening. The PW2 returned to the scene to see what happened and the man was breathing. The man shifted his attention not on the victim but on me whom they arrested and hand cuffed then taken to police station. They brought me out of detention and I was informed that the man died! I asked how he died but I was not told, they took me to somewhere written a statement and asked me to sign I was told that the police took the man to the hospital where he received injections and died later. Police recorded my statement at Abttoir Garki Police Station on two occasions. I was made to sign the statement, it was not read-over to me. Yes this Exhibit A was the signed (sic) at the police station……… They returned me to the cell untreated. No one treated me. At the prison I was treated by their Doctor/Nurse. No I did not kill the deceased and he did not die at my hand. I neither intend (sic) to kill him. I fought him because of the blood gushing from me.”
It is in my view most glaring that the Appellant has given contradictory accounts in respect of the encounter between him and the deceased on 17/9/2005. In this regard I cannot but note in particular that while the Appellant in Exhibit ‘A’ painted the picture that the deceased was the aggressor and that it was the object that the deceased was using in attacking him (one sharp object) that he wrested from the deceased and used in stabbing him, he painted a totally different picture in his evidence in court as re-produced above.
The position of the law as it relates to inconsistency in the testimony of the Appellant vis-a-vis his statement (Exhibit ‘A’ which I have earlier stated is no confessional statement has earlier been set out in this judgment. And it is that the account of the incident between the Appellant and the deceased contained in the Appellant’s oral testimony is unreliable; while the court cannot also act on the account contained in the Appellant’s statement (i.e. Exhibit A). The burden is on the Appellant to establish on a balance of probability the defence which he relies upon in respect of the charge preferred against him. Given the unexplained inconsistency in the accounts of the incident between him and the deceased on 17/9/2005 as highlighted above, I do not see how the lower court could have properly held that the defence of self-defence availed the Appellant in the circumstances of this case. It therefore follows that if the prosecution had adduced some evidence to establish all the ingredients of the offence the Appellant was charged with his defence of self-defence would have failed as he had offered no credible evidence in respect of the same; and there would have been no basis upon which the lower court could have found the act of the Appellant as excusable in law and consequently find the Appellant not guilty as it was enjoined to so do in law upon the success of the defence.
From the foregoing Issue 1 is accordingly resolved against the Appellant given the conclusion that the defence of self-defence could not have availed the Appellant in the circumstances of this case. Issue 2 is however resolved in favour of the Appellant to the extent that the law does not allow the lower court to use the success of the plea of defence of self-defence as a mitigating factor; it is a complete defence.
In conclusion and from the totality of all that has been said in this judgment and particularly as I have found the prosecution not to have proved the charge preferred against the Appellant beyond reasonable doubt, this appeal has merit and accordingly succeeds. The judgment of the lower court delivered on 10/1/2008 convicting the Appellant of the offence of culpable homicide not punishable with death under Section 222 (2) (4) and (7) of the Penal Code and punishable under Section 224 of the same Law and the sentence of 5 years imprisonment passed on the said Appellant are hereby set aside.
A verdict of not guilty is entered against the Appellant and he is accordingly discharged and acquitted.
Other Citations: (2010)LCN/3544(CA)
