Alhassan Maiyaki V. State (2007)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

The appellant, as accused was arraigned before the Yobe State High Court on the 18th October, 2004 on a charge of culpable homicide punishable with death which reads:

“That you, Alhassan Maiyaki, on or about the 7th day of June 2004 at about 07:30 hours around Texaco Filling Station at Potiskum Local Government Area which is within the jurisdiction of the Yobe State High Court of Justice did commit culpable homicide punishable with death in that you caused the death of one Habu Usman of Potiskun town by doing an act to wit you shot on his head with your rifle in the cause of struggle with others with the knowledge that his death would be the probable consequence of your act and you thereby committed an offence punishable under section 221 of the Penal Code.”

The prosecution called four witnesses and tendered 3 exhibits, while the appellant/accused testified in his defence and called another witness. He also tendered 3 exhibits. At the end of the trial, in a considered judgment delivered on the 21/6/05 learned trial Judge found the accused guilty as charged convicted him for culpable homicide punishable by death and sentenced him accordingly..

The appellant being aggrieved by the said sentence has now appealed to this court on five grounds of appeal.

Parties filed and exchanged briefs of argument and the appellant in his brief identified the following issues for the determination of appeal.

1. Whether the learned trial Judge properly evaluated and appraised the entire evidence to determine where the scale of justice tilted before arriving at his finding.
2. Whether the failure of the learned trial Judge to use the favourable testimonies of PW1 and PW2 to the advantage of the appellant has not occasioned a miscarriage of justice.
3. Whether the learned trial Judge was right when he refused to accept the defence of accidental discharge put in by the appellant in his defence.
4. Whether from the records of this case the defence of self defence can avail the appellant along with other statutory provisions that can exempt him from criminal liability.

The respondent in his brief settled by Ngalda Esq, Principal State Counsel in the chambers of Hon. Attorney General Yobe State identified these issues;

1. Whether the trial court properly evaluated the evidence before it, in convicting the appellant?
2. Whether there are material contradictions in the prosecutions case that would warrant the reversal of the trial courts decision?
3. Whether from the totality of the evidence before the trial court, the defence of accident can avail the appellant?
4. Whether self defence is given to the appellant in this case?

The set of issues as identified by each of the parties are essentially the same, I will therefore in the determination of this appeal adopt the issues as identified by the appellant.

It is apt at this stage to state the facts leading to this appeal.

On the 7/6/2004, the appellant, a policeman, was on board a luxurious bus with the DW1 as security escort on its way to Maiduguri. The bus stopped at Texaco Filling Station Potiskum. The appellant and the passengers on board the bus alighted and started urinating in a place said to be prohibited. The deceased, a security man at the filling station, accosted the accused and the other passengers and asked them not to urinate there. The appellant then shot the deceased on the head who died on the spot, the defence of the appellant being that they were attacked by a crowd of men holding iron and sticks who started beating the passengers and held his colleague captive and in an attempt to have him released his hand touched the trigger of the gun his colleague was holding and the deceased died.

On the first issue, the appellant submitted that the lower court did not consider and evaluate the evidence on both sides as presented by the parties before resolving the issue as to whether the death of the deceased resulted from the intentional act of the appellant with the knowledge that death or grievous bodily harm was the probable consequence as required by law.

He made reference to the testimony of the DW2 who said that the shot which killed the deceased was an ‘accidental discharge’ and pointed out that this testimony is as contained in the DW2’s statement before the police and was never challenged nor contradicted by the prosecution and should have been accepted by the lower court that the death of the deceased was not intentional rather it was as a result of the appellant’s struggle with the youths (crowds?) to restrain them from wrestling with the DW2.

He contends that the incidence which led to the trial of the appellant and his subsequent conviction was not the issue of the prohibition of urine but the death of the deceased in respect of which the appellant raised the defence of accidental discharge and that the lower court made no findings on this vital issue.

He urged us based on the above to re-evaluate the appellant’s testimony and make a proper finding as the finding of the lower court is perverse and should not be allowed to stand.

The appellant also submits that the testimonies of PW3 and PW4 before the lower court contradicts their statements to the police i.e. exhibits D & E and the learned trial Judge should not have relied on the said testimonies.

He contends that when the statement or evidence of a witness is of such obvious exaggerated proportions that it enters into the realm of either fantasy or is an affront to intelligence or it is reckless in its utterance, it should be ignored and consigned to garbage and be rejected in its entirety. He points out that such evidence having been shown to be manifestly hostile to reason and intelligence and to be impossible that it should not be believed by the court. He contends that the testimonies of the PW3 and PW4 fall within this category and should not have been accepted by the court and the court was wrong to have accepted such testimony and to have based the conviction of the appellant on it.

For these submissions he relied on Adamu v. The State (1991) 4 NWLR (Pt. 187) 530; Odulaja v. Haddad (1973) 11 SC 357; Efe v. State (1976) 11 SC 75; Ejuren v. C.O.P (1961) All NLR 478, (1961) 2 SCNLR 208; Haruna v. Police (1967) NMLR 145; Okpere v. The State (1971) 1 All NLR 1; Oladejo v. State (1987) 3 NWLR (Pt. 61) 419. And urged us on this issue to hold that the findings of the learned trial Judge is perverse and allow the appeal on the issue.

The respondent on this issue submits that after assessing the testimonies of the prosecution witnesses, particularly that of the PW3 and PW4 that the evidence against the appellant is cogent and compelling that the lower court after due evaluation of the said evidence was bound to convict the appellant on it.

He points out that the evidence before the court had shown that the appellant was carrying a gun on the day in question, that it was the bullet from the appellant’s gun that killed the deceased, that there was no evidence that there was a struggle to take the gun away from the appellant by either the deceased or any other person or group of persons at the material time in question.

That based on these undisputed facts the only verdict the lower court could return was that of conviction. He cited and relied on Lori & Anor. v. State (1980) 8-11 SC 81; Nafiu Rabiu v. The State (1981) 2 NCLR 293; Mohammed Chewmoh v. The State (1986) 2 NWLR (Pt. 22) 331; Okafor v. The State (1990) 1 NWLR (Pt. 128) 614 and urged us to dismiss the appeal on this issue. Here two sub issues are raised. The evaluation of evidence by the learned trial Judge and the reliance by the lower court on the testimonies of the PW3 and PW4 inspite of its contradiction with their earlier statements to the police.

To secure a conviction on a murder charge contrary to section 221(a) of the Penal Code the prosecution must prove the following ingredients of the offence beyond reasonable doubt;

1. that the deceased is dead,
2. that the act or omission of the accused caused the death of the deceased,
3. that the act or omission of the accused which caused the death of the deceased was intentional or it was With the knowledge that death or grievous bodily harm will be the probable consequence of the act or omission. See Ogba v. The State (1992) 8 LRCN 362, (1992) 2 NWLR (Pt. 222) 164; Abogede v. State (1996) 4 SCNJ 223, (1996) 5 NWLR (Pt. 448) 270; Akpan v. State (2000) 8 WRN 130; (2000) 12 NWLR (Pt. 682) 607.

From the evidence before the court there was no doubt that the deceased died as a result of the gun shot fired by the appellant see in particular excerpts of testimonies of witnesses before the court.

P W3 – “On the 6/6/2004, I could remember in the morning at about 8.00am one luxurious Bus came and parked at a place near our place of business and we told them this is not a place to park as they use to urinate around the area. The accused then told all the passengers to come out of the vehicle and urinate there. The security man there told them to go further and urinate. The name of the security man is Mallam Habu. This man, (pointing at the accused) just stepped back and short (sic) at the security man. The other escort opened fire sporadically in the air to scare people away and they ran away with their vehicles leaving me there on the dead body …

PW4 – “On the 6/6/2004 I could remember as I was at Texaco at my fuel site when a Luxurious Bus came, the accused along with others came down and were urinating. The security man Habu Abubakar and also he is known as Habu Hassan told the passengers that they should not urinate there. The accused urinated and cocked his rifle and shot the security man. I reported to the master what happened. We came with the master owner of the filling station to the scene where we met the dead body. That is all I know. The deceased was shot on his head”.

DW1 (appellant) – On 7/6/2004 we were coming from Lagos to Maiduguri on reaching Potiskum Texaco, the passengers asked us to tell the driver they want to pray.

As the passengers alighted from the vehicle and while 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, and were struggling. Ibrahim Bello was shouting you want to collect my 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. A boy died as a result.

DW2 – “On 7/6/2003 We arrived Potiskum around 7.20am and passengers were shouting on the driver to stop so that they pray. We stopped and when the passengers went out some were urinating when some group of people sitting on uncompleted wall approached the passengers and started beating them. They met me in knelling position. I told them the place is dirty with human faces all over and no sign of do not urinate here. Two men came from my front while others from my back and they hold my riffle in my shoulder position.

I then shouted for help. My colleague Alhassan Maiyaki who was near me came to my rescue and held my rifle.

It was then that an accidental discharge occurred … ”

See also the submission of learned counsel to the accused in his address before the lower court at page 18 of the record.

“We conceded that the prosecution has proved the first ingredient i.e. the death of the deceased and also the second ingredients (sic). ”

In evaluating the above testimonies the learned trial Judge held as follows,

“Both counsel addressed the court at the end of the case.

In his address before the court, learned counsel for the accused submitted that for the prosecution to secure conviction, they must prove the following vital ingredients and these are:

(i) That the deceased had died.

(ii) That his death was caused by the accused.

(iii) That the act of the accused which caused the death was intention (sic) having the knowledge that death or grievous bodily harm was the probable consequence of the act.

Learned counsel added that the burden is on the prosecution to prove all the above ingredients beyond reasonable doubt. He relied on the State v. Usman (2005) 1 NWLR (Pt. 906) page 80 and Isibor v. The State (2002) 3 NWLR (Pt. 754) page 250. Counsel for the accused however, conceded that the prosecution has proved the 1st and 2nd ingredients of the offence but disputed that the prosecution has not proved the 3rd ingredients.

Learned prosecution counsel therefore urged the court to so hold that the prosecution has proved the 1st and 2nd ingredients of the offence since counsel for the accused has conceded. He referred the court to the case of Okoro v. The State (1988) 5 NWLR (Pt. 94) page 255 in addition to the cases referred to by counsel to the accused above. Since both counsels agreed that the 1st and 2nd Ingredients have been established, I therefore hold that the prosecution has proved the 1st and the 2nd ingredients of the offence beyond reasonable doubt, with this, the work of this court is now narrowed to the determination of the question of whether or not the 3rd ingredient of the offence vis is proved by the prosecution.”

In effect, the 1st and the 2nd ingredients of the offence have been proved, as it was not an issue that the deceased died neither was it an issue that the act of the appellant i.e. the shooting of the deceased by the appellant with a rifle caused the death of the deceased.

In such a situation, what remains for the trial court to arrive at a decision, is to examine the evidence and decide whether or not the 3rd ingredient of the offence had been proved against the appellant. The lower court in arriving at the conclusion that the 3rd ingredient had been proved against the appellant extensively examined the testimonies of all the witnesses both prosecution and defence witnesses, the submissions of learned counsels and applied it to the law and arrived at the conclusion that the appellant intended the consequences of his act.

Where a trial court who had had the opportunity of watching the demeanour of each witness and correctly evaluated the evidence before it, it is not the business of an appellate court to interfere or re-evaluate the evidence and supplant its views’ for those of the trial court, unless such findings are obviously perverse.

See Kodilinye v. Odu (1935) 2 WACA 336; Esangbedo v. State (1989) 4 NWLR (Pt. 113) 57.

In the instant case, the trial court had properly evaluated the evidence before it and arrived at the correct decision based on the evidence before it and it is not the business of this court to interfere with it. The 2nd sub-issue to the first issue raised touches on the inconsistency of the testimonies of the PW3 and PW4 to their earlier statements to the police i.e. exhibits D and E.

In his brief, the appellant sought to show that PW3 who claims to be an eye witness, on his testimony before the court stated that “the accused then told all the passengers to come out of the vehicle and urinate there.” That under cross examination PW3 stated “…I was standing in front of the shop when the incident occurred ”

While in exhibit D the PW3 stated he was inside the shop taking his break fast.

That the PW4 under cross-examination stated ” … I was together with the deceased when he approached the accused … ” While in exhibit E the PW4 stated that he was busy selling in his shade opposite Texaco while the deceased was at the filling station. He also points out that the PW4 also stated in exhibit E that ” … I rushed to know what was happening but before I arrived the escort shot Haxbu Usman”, that this is inconsistent with his testimony where he stated he was with the deceased when the deceased approached the appellant.

Appellant on these, contends that where a witness is shown to have made previous statements inconsistent with the evidence given at the trial the evidence of such a witness should be regarded as unreliable and urged us to so hold.

It is trite that contradiction in the testimony of a witness with that of his extra-judicial statement to the police on material facts is relevant as such evidence is liable to be regarded as unreliable and be rejected.

To be material and not minor such evidence must relate to matters of substance as to raise doubt in the mind of the court as to the guilt of an accused person. See Aruna v. State (1990) 6 NWLR (Pt 155) 125; Magaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393; Ogaala v. State (1991) 2 NWLR (Pt. 175) 509; Ani v. State (2003) II NWLR (Pt. 830) 142.

It is however, permissible in law for a witness to give evidence in court which is not contained in his statement to the police provided that such evidence is not in direct conflict with the statement. Where the contradictions are not on material facts, the contradictions or inconsistencies should not disturb a finding of guilt -Ibrahim v. State (1991) 4 NWLR (Pt. 186) 399; Nasamu v. State (1979) 6-9 SC 153; Atana v. A.-G. Bendel State (1988) 2 NWLR (Pt. 75) 201; Kalu v. State (1988) 4 NWLR (Pt. 90) 503.

To my mind, the inconsistencies in the testimonies of the PW3 and PW4 to exhibits D and E in the instant case are not on material facts. The PW3 and PW4 were eye witnesses to the shooting of the deceased by the appellant. They were within the vicinity of the scene when the deceased was shot. The shooting and the death of the deceased were not issues before the trial court as these were facts that were admitted and conceded to by the appellant.

The contradiction if any, were as to their exact location at the time the shooting took place. There was no inconsistency on the shooting and the death of the deceased. The inconsistency as to location of the witnesses are minor and does not go into the root of the evidence adduced before the lower court as to be fatal to the prosecution’s case. They cannot be and are not the determining factors of the necessary mens rea to the commission of the offence. Issue 2 relates to the failure of the learned trial Judge to rely on the testimonies of the PW1 and PW2 to the advantage of the appellant and that, that failure had occasioned a miscarriage of justice. On it, the appellant contends that the learned trial Judge was wrong when he discountenanced the testimonies of PW1 and PW2 which were favourable to the accused person/appellant and relied on the testimonies of the PW3 and PW4 to establish that the appellant intentionally killed the deceased with his rifle.

A close look at the testimonies of the PW1 and PW2 shows that they were testifying as the investigating police officers who came into the matter after the death of the deceased or the commission of the offence. All that they did in investigating the matter was to visit the scene, and recover the 3 empty shells of ammunition at the scene, register same, as exhibits and record the statement of the appellant and witnesses. PW2 in effect recorded a confessional statement of the appellant (exhibit C) and had it endorsed by a superior officer ASP Yusai Dalma and arraigned the appellant before the court on 31/8/2004. The testimonies of the two witnesses pat1icularly under cross examination are hearsay based on what they recorded in the statements of the appellant.

PW1 and PW2 are witnesses after the fact while PW3 and PW4 are eye witnesses to the death of the deceased and coupled with exhibit C and the testimony of the appellant himself, the court was

right in accepting and relying on their testimonies in arriving at its decision as against the testimonies of PW1 and PW2. It is interesting to note that there were 2 other police men escorting the two buses, the passengers and the drivers apart from the appellant and DW2 who were eye witnesses yet they were not called as defence witnesses. The presumption will be that their testimony would have been disadvantageous to the appellant.

A trial court having had the advantage of hearing and seeing the demeanor of witnesses has the discretion of believing the testimony of a witness as against that of another witness, so long as there is no miscarriage of justice. In the instant case, the court has used this discretion and there is nothing to show that the decision arrived at was perverse or had occasioned a miscarriage of justice.

On issue 3, the appellant submits that for the prosecution to successfully establish the guilt of the appellant under section 221 of the Penal Code, it must prove that the act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was the probable consequence.

He posits whether the defence of accidental discharge can avail the appellant in establishing that he never intended to cause the death of the deceased.

Citing and relying on Oguonzee v. State (1998) 5 NWLR (Pt. 551) 521; and Sholuade v. The Republic (1966) 1 All NLR 134; (1966) 1 SCNLR 362 the appellant submits that from the facts of this case, the testimonies of the appellant who testified as DW1, DW2 and PW2 the defence of accidental discharge can avail the appellant in the circumstances and exempt him from liability both for the firing and its consequences.

Replying, the respondent submits that based on the facts and circumstances of the case, the weapon used, the force applied and the part of the body affected by the act of the accused, the only conclusion will be that the appellant knew or had reason to believe that death would be the likely consequence of his action. That the testimonies of the PW3 and PW4 proved that the appellant intended killing the deceased.

Relying on Udoh v. State (1994) 2 NWLR (Pt. 329) 666, the respondent contends that where such a defence is raised by the appellant he must lead evidence as to the sudden and unintentional circumstance which led to the commission of the crime. That there was no such evidence and the court was right to have held that the defence of accidental discharge will not avail the appellant.

In the instant case, the appellant had admitted that it was his act that resulted in the death of the deceased but maintained that the shooting which led to the death of the deceased was as a result of an accidental discharge of his gun.

An act is said to be accidental where it is neither foreseen nor intended by the actor.

In trying to determine whether the appellant intended the act or had the knowledge that death would be the probable consequence of his act, the learned trial Judge found as follows;

“On intention generally, the law presumes that a person intends the natural consequences of his act. Therefore in determining whether an accused could be held to have known or had reason to know that death was the natural or probable consequence of his action the following are’ taken into consideration –

(a) the weapon used in committing the offence;

(b) the amount of force applied;

(c) the part of the body affected.

In the case at hand, learned prosecuting counsel rightly submitted that the weapon used is a gun, and the part of the body affected is the head. Taking into consideration the use of the gun directly on the deceased’s head will certainly result in nothing other than the death of the deceased. Thus, by the use of the gun in shooting the deceased on his head, intention to cause death would be inferred and is indeed proved.”

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 Oladipupo v. State (1993) 6 NWLR (Pt. 298) 131, the appellate court upheld the finding of the trial court that the defence of accident did not avail the appellant for although he might not have intended the death of the deceased by throwing a plier at him, the act of throwing the plier itself was not accidental. 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 1so hold.

The appellant submits on issue four that it is incumbent on the trial Judge to consider all the defences put up by an accused person in all cases attracting capital punishment. Relying on Alli v. The State (2003) 11NWLR (Pt. 830) 142, he contends that the court must not be wary to give the evidence of the accused the consideration it deserves no matter the level of the defence, whether it is full of pigments of imagination, fanciful, filled with porous lies or doubtful. He also points out that the lower court should have considered the defence of self defence as enshrined in section 33(2)(a) of the 1999 Constitution and that as provided under the Police Act which empowers an armed police officer to use the arm whenever the need arises in preventing the commission of an offence.

Learned counsel to the respondent rightly pointed out and submitted that from the evidence before the court that the deceased did not in any way attack the appellant, the DW2 or any other person. That the attack, if any, was against the DW2. That the defence that was proffered by the appellant was only that of accidental discharge.

He further contends relying on Egboghonome v. State (1993) 7 NWLR (Pt. 306) 383 that defence of accident is inconsistent with defence of provocation or self defence. He also and rightly points

out that the learned trial Judge had in his judgment (pages 9 lines 29-31; 10 lines 33-36) considered all the defences that were available to the appellant and ruled them out as untenable.

It is so and I upheld the above submission in its entirety. It is trite that a defence raised by an accused person ought to be considered however weak, foolish or unfounded such a defence may appear. In the instant case, the lower court has looked at the defence raised by the appellant and other defences available to him and rightly came to the conclusion that none can avail him in the circumstances by the case.

Having examined and considered all the issues, I am satisfied that the lower court had correctly assessed the evidence that was before it and rightly convicted the appellant.

Where a trial court had correctly applied the law to the facts of the case or the evidence that was adduced before it and correctly arrived at ajust decision it is not the business of an appellate court to interfere with such finding as in the case.

In the circumstances, I find no substance in this appeal and hereby dismiss it, I affirm the judgment of the High Court of Yobe State of 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.

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Other Citations: (2007)LCN/2337(CA)