Alhassan Mai Yaki V The State (2008)

LAWGLOBAL HUB Lead Judgment Report

P.O. ADEREMI JSC

This is an appeal against the decision of the Court of Appeal (Jos Division) holden at Jos, which has, in a considered judgment delivered on the 25th of April 2007, dismissed the appeal against the judgment of the Yobe State High Court sitting at Potiskum in Potiskum Judicial Division.

In the court of first instance (High Court sitting at Potiskum) the appellant was charged with causing the death of Habu Usman of Potiskum at the Texaco Filling Station on the 7th day of June 2004 by shooting him (Habu Usman) on the head with his (appellant) rifle in the cause of struggles with others with the knowledge that the death of the deceased would be the probable consequence of his act. The case proceeded to trial before the court of first instance and after concluding evidence on both sides and sequel to taking the final addresses of counsel on both sides, the trial judge, in a reserved judgment delivered on the 21st of June 2005, convicted the appellant of the offence and consequently sentenced him to death. In so doing, the trial judge held inter alia:- “From the entire case, I tried to see what defences are available to the accused other than the only single defence of accident but I could not find any. I must therefore say that the accused was negligent in his conduct. Generally, in a criminal trial, it is not enough for the prosecution to suspect a person of having committed a criminal offence, there must be evidence which identified the person accused with the offence and that it was his act which caused the offence. In the instant case, evidence abound (sic) and infact there was conceded to even by counsel for the accused that a human being died; one Habu Usman that it was the act of the accused that caused the death. What was disputed by counsel was the intention or necessary mens rea which according to counsel for the accused, was lacking. However, in my considered view, having considered the entire circumstances of this case particularly taking into account the nature of the weapon used, the force applied and the part of the body affected by the act of the accused, I am not left in any doubt that the accused actually intended killing the deceased and no more and he thus succeeded.” Dissatisfied with the judgment of the trial court, the appellant appealed therefrom to the court below (Court of Appeal).

That court dismissed the appeal and in so doing, it held inter alia: – “Considering that the appellant is a policeman who has been trained to handle a gun, the shooting of the gun by the appellant directly on the head of the deceased will only infer that the appellant has by this singular act intended to cause the death of the deceased and the learned trial judge had rightly found so ………………………… In the instant case, the appellant having failed to adduce evidence to show that the act of the shooting of the deceased was accidental, the only inference was that the act itself was intentional, the defence of accidental discharge will thus not avail the appellant in the instant case and I so hold.”

Again, dissatisfied with the judgment of the court below, he appealed to this court via a Notice of Appeal which has incorporated into it nine grounds of appeal. The appellant and the respondent filed their respective briefs of argument. When this appeal came before us for argument on 17th April 2008, Mr. Paul, learned counsel for the appellant, referred to, adopted and relied on his client’s brief of argument and while referring us to the evidence of DW2 – Sgt. Ibrahim Bello – who was described as a key witness and who gave evidence of accidental discharge by the appellant; he submitted that the evidence of accidental discharge be believed and consequently, the appeal be allowed. Mr. Kehinde, learned counsel for the respondent, referred to, adopted and relied on the respondent’s brief of argument filed on 12th December 2007, he urged that the concurrent findings of the two courts below be not disturbed, the judgment of the court below be affirmed while the appeal be dismissed.

As I have said, both the appellant and the respondent did exchange their briefs of argument after filing same. Distilled from the nine grounds of appeal by the appellant and as set out in his brief of argument are five issues which are in the following terms:

(1) Whether the lower court was right in upholding the judgment of the trial court that the defence of accident was not made out by the appellant.

(2) Whether the lower court was right when it declined to interfere with the findings of the trial court on the ground that the trial court had properly evaluated the evidence before it when in fact the trial court did not properly evaluate the evidence.

(3) Whether the lower court was not in error when it failed to set aside the conviction of the appellant by the trial court in view of the manifest irreconcilable material contradictions in the evidence of the prosecution’s witnesses.

(4) Whether the lower court was right in raising the presumption of withholding evidence against the appellant for failure to call the other policemen passengers and drivers as defence witnesses.

(5) Having regard to the entire evidence before the trial court, whether the lower court was right in its conclusion that none of the defences raised by the appellant before the trial court availed him.

For their part, the respondent identified four issues from the said nine grounds of appeal for determination and, as contained in their brief of argument, they are as follows: –

(1) Whether the learned justices of the Court of Appeal were right by declining to interfere with the findings of the trial court on the ground that the trial court had properly evaluated the evidence before it.

(2) Whether the learned justices of the Court of Appeal were right in upholding the trial court’s decision that none of the defences raised by the appellant can avail him.

(3) Whether the learned justices of the Court of Appeal were right in upholding the trial court’s decision that the defence of accident is not available to the appellant.

(4) Was the appellant (sic) conviction rightly upheld in the face of contradiction in the evidence of the prosecution.

I have had a close study of the two sets of issues identified by the appellant and the respondent for determination in this appeal. A marriage of the two sets leaves me in no doubt that two cardinal or fundamental issues are thrown up by the said two sets and they are:-

(1) Whether the prosecution proved the charge of murder of Habu Usman against the Appellant (Alhassan Mai Yaki) beyond reasonable doubt. and

(2) Whether the appellant adduced credible and satisfactory evidence in support of his defence of accidental discharge.

The appellant had argued in his brief of argument filed on 23rd August 2007 that from the totality of the testimonies of the witnesses that testified before the trial court, there is no evidence linking the appellant with the murder of Habu Usman; there was no proper evaluation of the evidence of DW1 and DW2. It was also his argument that the evidence of PW3 – Abubakar Musa – contradicts his statement to the Police which statement was admitted in evidence as Exhibit D; and that similarly PW4 – Abdullahi Hassan – contradicted himself in that his viva voce evidence before the trial court is at variance with this statement to the Police tendered and admitted as Exhibit “E”. It cannot therefore be said that the case was proved beyond reasonable doubt it was further argued while relying on the decision in Uwaekweghinya v. State (2005) NWLR (Pt. 930). On the portion of the judgment of the trial court where it was held that the failure of the appellant to call the other Policemen, drivers and passengers who were eye witnesses raised a presumption that the testimonies of these persons would have been disadvantageous to the appellant which finding was upheld by the court below. It was again argued that it was never demonstrated or even suggested before any of the two lower courts that the appellant withheld these people from coming to testify; the lower court, it was then submitted was in error when it raised the presumption of withholding evidence against the appellant, adding that the error led to miscarriage of justice.

On the issue of defence of accidental discharge, the appellant submitted that the defence was not given a thorough consideration having regard to the evidence led; adding that the facts are consistent with the defence of accident raised by the appellant. In its own brief, the respondent submitted that to secure a conviction on murder charge contrary to Section 221 (a) of the Penal Code, the prosecution must prove the ingredients of the offence beyond reasonable doubt. After reviewing the evidence led at the trial and the entire circumstances of the case particularly taking into account the nature of the weapon used, the force applied and part of the body of the deceased affected by the act of the accused, it was submitted that the accused knew or would have reason to believe that death would be the likely consequence of his action. Evidence of PW3 and PW4 amply supports this contention it was again argued. On the defence of accidental discharge, it was submitted that there was no dispute that the appellant was carrying a gun on that day, no dispute that it was the bullet from the appellant’s gun that killed the deceased; there is no evidence of any struggle to collect the gun from the appellant either by the deceased or any person or group of persons that defence (accident) is therefore not available to him (appellant) and the trial judge was therefore right in his consideration of the defence of accident and by a similar token, the court below was right in upholding the decision of the trial court on that defence. On the issue of contradiction in the evidence of the prosecution witnesses, particularly the evidence of PW3 and PW4; after reviewing the testimonies of the aforesaid two witnesses, it was submitted that contradiction, if any, between the testimonies of PW3 and PW4 was not material and substantial as to affect the case of the prosecution; reliance was placed on such cases as (1) Ibrahim v. The State (1991) 4 NWLR (Pt.186) 399, (2) Nasamu v. The State (1979) 6-9 S.C. 153 and (3) Atano v. A-G Bendel State (1988) 2 NWLR (Pt.75) 201. It was finally urged on us to dismiss the appeal and uphold the judgment of the court below.

As I have said above, the two cardinal issues for determination in this appeal are

(1) whether the prosecution has proved beyond all reasonable doubt the charge of murder against the appellant and

(2) whether from the evidence available, the defence of accidental discharge will avail the appellant.

The appellant was charged at the court of trial (Yobe State High Court of Justice) with culpable homicide punishable with death in that he was alleged to have caused the death of one Habu Usman of Potiskum Town on the 7th of June 2004 by doing an act to wit – shooting the head of the deceased with his (appellant) rifle. From plethora of judicial authorities, it is now well settled that to secure a conviction on a charge of murder, the prosecution must prove:- (1) that the deceased had died. (2) That the death of the deceased had resulted from the act of the appellant; and (3) that the act or omission of the accused which caused the death of the deceased was intentional with the full knowledge that death or grievous bodily harm was its probable consequences. See (1) Daniels v. The State (1991) 8 NWLR (Pt. 212) 715; (2) Fred Dapere Gira v. The State (1996) 4 NWLR (Pt.443) 375 and (3) Nwaeze v. The State (1996) 2 NWLR (Pt.428) 1. These three ingredients must co-exist and where one of them is absent or tainted with some doubt, the charge cannot be said to have been proved. See (1) Obudu v. The State (1991) 6 NWLR (Pt.198) 433, (2) Ogba v. The State (1992) 2 NWLR (Pt.222) 164. PW3 – one Abubakar Musa, an artist while giving evidence said a luxurious bus in which the appellant was travelling together with some other passengers stopped at their place of business near the Texaco Petrol Station and he said others said the bus should not park there as the passengers of such buses always alighted from their vehicles and urinate around the area. But the appellant, to his hearing, asked all the passengers to alight from the vehicle and urinate there. The deceased, by name Mallam Habu, who was a security man at the filling station told the passengers to go further and urinate. The appellant, he said, stepped back and shot at the security man – Mallam Habu. The other escort in the luxurious bus immediately shot into the air to scare away people while the passengers ran into the bus and they all immediately left in the bus leaving the dead body there. He was emphatic that it was the appellant that shot the deceased. He was not shaken under cross-examination. PW4 – one Abdullahi Hassan, a fuel dealer selling fuel at Texaco Petrol Station who was also present at the scene on 6th June 2004 corroborated the evidence of PW3 in all material respect when he said the appellant along with others alighted from a luxurious bus and were urinating when the security man – Habu Abubakar – the deceased told the passengers not to urinate at that place; the appellant, he continued his evidence, urinated there and cocked his rifle and shot the security man – Habu Abubakar. He reported the incident to the owner of the Texaco Petrol Station who came out with him to have a look at the dead body of Habu Abubakar. He was emphatic that Habu Abubakar was shot on his head. He like PW3 said he made statement to the Police. He was not shaken under cross-examination. With his evidence, the prosecution closed its case. DW1 was Alhassan Mai Yaki – the appellant, said on their journey in the luxurious bus from Lagos to Maiduguri, the driver stopped at Texaco Petrol Station Potiskum at the instance of the passengers who said they wanted to pray. Continuing, he said as the passengers alighted from the vehicle and while some were performing their ablution, he saw some group of men who were holding iron and sticks beating the passengers; his colleague escort – Ibrahim Bello also urinated at the same site and some people went and grabbed him along with his gun. He claimed he was about five to seven feet away from where Bello was standing struggling with the men and shouting that they wanted to snatch his gun. He (appellant) claimed he rushed to where Bello was and while hanging his (appellant) gun, he held on to Bello’s gun struggling with the men and, according to him, unfortunately his hand touched the trigger and it went off. He admitted that the boy died as a result. He claimed he did not kill the boy intentionally. He said he made a statement to the Police. DW2 – Sgt. Ibrahim Bello – the second escort corroborated the evidence of DW1 as to his (DW1) coming to rescue him from the people and in the process an accidental discharge occurred. He also made a statement to the Police. When they left Potiskum, they did not stop at Damagun it was Damaturu where they stopped and made a report. Under cross-examination DW2 said and I quote him: – “It is correct that the accused person was the one who shot the deceased. The accused was in the process of rescuing me when he shot.” As I have said earlier in this case, the defence of the appellant is that Habu Abubakar died as a result of accidental discharge from his gun. The defence of accident is clearly defined in Section 48 of the Penal Code which is applicable to this case; that section says: – “Nothing is an offence which is done by accident or misfortune and without any criminal intention or knowledge in the course of doing a lawful act in a lawful manner by lawful means and with proper care and caution.” Suffice it to say that Section 48 of the Penal Code is in pari materia with Section 24 of the Criminal Code applicable generally to the southern part of the geographical entity called Nigeria. If I may go further, I wish to say that the provisions of Section 48 of the Penal Code and Section 24 of the Criminal Code are in line with the rules of English Law relating to MENS REA under which a person should not be convicted of an offence unless he has a guilty mind. Going by the wording of the said section 48 of the Penal Code, it is quite clear to me that the defence of accident presupposes that the accused physically committed the offence with which he is charged, but having regard to the facts which he admits, all the same he should be acquitted because his conduct in the commission of the offence was an accident. For an accident is generally regarded as the result of an unwilled act and is understood to be an event without the fault of the person alleged to have caused it. It follows from the above that where an accused person raises the defence of an accident as in the present appeal the onus still remains on the prosecution to prove its case beyond reasonable doubt by leading credible and admissible evidence to negate the defence and of course convince the trial court that the defence does not avail the accused person. See (1) Chukwu v. The State (1992) 1 NWLR (Pt.217) 255 and (2) Ljello & ors v. A-G Oyo State (1986) 5 NWLR (Pt.45) 828. I have set out above the ingredients which the prosecution must prove to earn conviction for murder. From the evidence before the trial judge, it admits of no argument that Habu Usman died and that his death was as a result of the gun shot which resulted from the appellant’s act. Whether the death was brought about by the intentional act or the appellant which to his (appellant) knowledge would reasonably cause the death of the deceased (Habu Usman) is what I shall now examine ANON. Let me however quickly say that in our jurisprudence, a man is taken to have intended the natural consequences of his act. But for the defence of accident raised by the appellant, I would not have had any hesitation in coming to the conclusion that the act of the appellant was intentional and therefore, the three ingredients that must co-exist in law to earn conviction were present here. And I would have come to the conclusion that the prosecution had discharged its duty. What is the evidence in support of this defence? DW1 – Alhassan Mai Yaki – the appellant said in his evidence before the trial court inter alia: – “As the passengers alighted from the vehicle and which some were performing their ablution some group of men holding iron and sticks started beating the passengers. Some of the passengers had started praying while others ran into the vehicle. My colleague escort Ibrahim Bello also urinated at the site and the group of people went and grabbed him along with his gun. I was about 5-7 feet away so I rushed to him. I hanged my gun and I held his gun struggling with the people and unfortunately my hand touched the trigger and it went up (sic). A boy died as a result.” As I have said earlier, the appellant said he made statement to the Police. Indeed, the appellant made two written statements to the Police. In the first one he made on the 7th of June 2004, the appellant said inter alia: – “On reaching Potiskum town in Yobe State at about 07.20 hours some Musiim passengers inside the vehicle pleaded to the driver in order to pray and the driver stopped near Texaco filling station along Maiduguri Road. Immediately the vehicle stopped the passengers went out to urinate at the other side of the road. However, one of the escorts also went to urinate, by then there were some people sitting on top of an un-completed building numbering about ten. So they went and brought some sticks and started beating the passengers saying that why are they urinating at that place. Meanwhile, five out of the men went and attacked Sgt. Ibrahim Bello who was also urinating struggling to disarm him. So I quickly rushed for (sic) his rescue as well as Sgt. Jimoh Adenugba. In fact, during this development, I heard a sound of gun shot while there was a heavy cram (sic) in which it became difficult for me to know the person who fired that rifle/gun.” The appellant made a second statement to the Police on the 8th of June 2004; in it he said inter alia: “On the 7/6/04 at about 0720 hours when I saw some youths attacking Sgt. Ibrahim Bello in order to collect his rifle. I went there to rescue him from the hands of the youths. When the youths were struggling to snatch the rifle from him, accidentally my hand touched the trigger of his rifle and fired somebody as I was trying to separate them. I did not intentionally mean to fire anybody. It was an accidental discharge.” In the first statement he made to the Police on the 7th of June ’04, he never raised the defence of accidental discharge. Again, in his second statement made on the 8th of June 2004, all he said was that his hand accidentally touched the trigger of the rifle of Sgt. Ibrahim Bello who incidentally is DW2. He did not say that he accidentally touched the trigger of his own (appellant) rifle. DW2 also testified before the trial court confirming that the appellant came to his rescue when he was attacked by the mob and, according to him, it was at that moment that an accidental discharge occurred. He did not mince his words in saying that the appellant shot the deceased on the head. As I have said, if the defence of accidental discharge were successfully set up in the present case, it would certainly relieve the appellant of criminal responsibility as it would constitute a negation of any deliberate act or omission on his (appellant) part. See Chukwu v. The State (1992) 1 NWLR (Pt.217) 253. For the defence to avail an accused person, it must be raised timeously. In his evidence before the trial court, the appellant never admitted that he pulled the trigger of his rifle and consequently shot the head of the deceased. In his first statement to the Police, he said he suddenly heard a gun shot; he would not know who released the gun shot; of course, he never admitted he shot the deceased. But in his (appellant) second statement, he said in the course of his trying to rescue DW2 Sgt. Bello his (appellant) hand accidentally touched the trigger of DW2’s rifle and the shot was let go. These are inconsistent statements and the evidence of the appellant thus became tainted. That defence was not even raised timeously by the appellant; and he (appellant) was even very economical as to the truth of the matter in his second statement. This again makes his testimony unreliable. Can it then be said, in law that the defence was successfully set up? My answer, from the evidence on record, is in the negative. The appellant made a spirited effort to save the day for himself by contending that there were contradictions in the evidence of the prosecution witnesses. I have carefully gone through the record; there is no material contradiction in the evidence of the prosecution adduced to prove the murder case. In the final analysis, and for all I have been saying, this appeal is devoid of any merit. It must be dismissed and I hereby accordingly dismiss it. I affirm the judgment of the court below which itself has accorded approval to the judgment of the trial court delivered in the High Court of Yobe State delivered on 21/6/05 wherein it convicted and sentenced the appellant for culpable homicide punishable with death contrary to Section 221 (a) of the Penal Code.

SC. 218/2007